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Music

can be banned if it even sounds

religious:

Supremes won't hear case where officials censored melody By

Chelsea Schilling, March 22, 2010

 

 

 

 

 

 

 

 

 

 

 

U.S.

Supreme Court

 

 

 

 

 

A public school has banned performance of an instrumental version

of "Ave Maria" at its high-school graduation

simply because the superintendent fears it might sound religious and

the U.S. Supreme Court is allowing the ban to stand by refusing to hear

the case.

Kathryn Nurre, a former student at Henry M. Jackson High

School in Everett, Wash., brought the action against Carol

Whitehead, superintendent

of Everett School District, alleging that she engaged in

unjustified censorship of expression.

Nurre, a member of the Jackson High School Wind Ensemble who played

alto saxophone, received her high school diploma in June 2006. The

group was expected to perform at the graduation ceremony, and 17

students unanimously chose Franz Biebl's "Ave Maria" as their

selection.

Their performance would be purely instrumental, with no singing or lyrics.

However, upon learning of the selection, Jackson High School

Principal Terry Cheshire contacted District Executive Director Lynn Evans, who in turn

contacted Superintendent Whitehead.

"Without student input or involvement, the administrators

unilaterally decided to prohibit the seniors from playing 'Ave Maria'

at the graduation," the complaint states.

Whitehead testified, saying "We made the decision that because the

title of the piece would be on the program and it's 'Ave Maria' and

that many people would see that as religious in nature, that we would

ask the band to select something different."

According to court documents, no one at the meeting admitted to

knowing the meaning of the words "Ave Maria" "Hail Mary" in Latin.

However, they agreed that it seemed to have a religious connotation.

At Whitehead's direction, an e-mail was sent to high school

principals with guidelines on music selections for graduation

ceremonies. It insisted that the music be "entirely secular in nature."

 

The students asked if they could play "Ave Maria" if they identified

it only as "A selection by Franz Biebl" on the program. But Principal

Cheshire said doing so would not be "ethical."

Instead, the students were forced to perform a movement from Gustav

Holst's "Second Suite for Military Band" at the commencement ceremony.

Attorneys for the Rutherford Institute filed suit against the school

district in June 2006. Nurre alleged the school district deprived her

of her rights under 1) the Free Speech Clause of the First Amendment,

2) the Establishment Clause of the 14th Amendment and 3) the Equal

Protection Clause of the 14th Amendment.

The district court ruled against Nurre, and the Court of Appeals for

the Ninth Circuit affirmed the judgment.

In a 2009 dissenting opinion, Circuit Judge Milan Smith expressed

his view that Nurre's First Amendment rights were violated and his fear

that the decision could lead "public school administrators to chill

or even kill musical and artistic presentations by their students ...

where those presentations

 

contain any trace of religious inspiration, for fear of criticism by

a member of the public, however extreme that person's views might be."

The

Rutherford Institute, a nonprofit legal group, asked the Supreme

Court to hear the case in December, but the Court has now refused the

request.

Supreme Court Justice Samuel Alito blasted the court for rejecting

the case.

"When a public school purports to allow students to express

themselves, it must respect the students' free speech rights," Alito

stated in his six-page opinion on the case. "School administrators

may not behave like puppet masters who create the illusion that

students are engaging in personal expression when in fact the school

administration is pulling the strings."

Likewise, John W. Whitehead, president of the Rutherford Institute,

said he is disappointed in the Court's decision to let the lower court

ruling against Nurre stand.

"Free speech in the public schools is on life support," he said.

"With this decision, the Supreme Court may have pulled the plug. It's a

sad day for freedom in America."

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