Ruling backs high school's decision to bar band from playing 'Ave Maria'

WASHINGTON — Everett School District officials did not violate a student’s First Amendment rights by not allowing a high school wind ensemble to play “Ave Maria” during the 2006 graduation ceremonies, a federal judge ruled Thursday.

The U.S. District Court in Seattle ruled that although music is considered a form of speech that can be protected, the school district was within its legal rights to control the content — not the viewpoint — of any speech at the graduation ceremony.

Because Henry M. Jackson High School’s “prohibition of the performance of “Ave Maria’ was based on the decision to keep religion out of graduation as a whole, not to discriminate against a specific religious sect or creed,” the content restriction was permissible, wrote Judge Robert S. Lasnik.

Kathryn Nurre, then a senior member of the wind ensemble, filed the lawsuit against Carol Whitehead, superintendent of the district, shortly after the ceremony in June 2006.

Nurre declined to comment and referred the Student Press Law Center to her lawyer, John Whitehead.

John Whitehead is the founder of the Rutherford Institute, a Charlottesville, Va.-based civil liberties organization. John Whitehead is not related to Superintendent Carol Whitehead.

“I thought it was a joke at first when I heard about it,” John Whitehead said. “It’s a beautiful song. It’s not proselytizing. And the kids voted on it.”

In 2006, wind ensemble seniors voted unanimously to play “Ave Maria” for the band’s performance at graduation. The school allows the seniors to pick which song they want to play for the ceremony. Previous selections include “On a Hymnsong of Philip Bliss,” a popular composition based off the hymn “It is Well Within My Soul.”

But when the ensemble’s director asked for approval of “Ave Maria,” a school official said the song was unacceptable and requested “music selections for graduation be entirely secular in nature.”

“We are talking about “Ave Maria’ without lyrics,” Whitehead said. “This is insane. It doesn’t make any sense.”

The wind ensemble’s seniors picked a new song, “Holst Second Suite in F,” but Nurre filed suit against Carol Whitehead, alleging the district violated her First Amendment right to free speech and “demonstrated a hostility to and bias against religion in violation of the Establishment Clause of the First Amendment.”

Carol Whitehead did not return several calls made by the Student Press Law Center since Friday. Mary Waggoner, spokeswomen for the Everett School District, declined to comment.

The court ruled that school officials did not violate the Establishment Clause by restricting religious music at the graduation ceremony. Instead, school officials were attempting to avoid a conflict with the Establishment Clause because “speech at graduation may be considered state-sponsored as opposed to “private speech.’”

Because the seniors had already played “Ave Maria” at a school music concert, administrators’ actions were only in the “graduation context” to keep all religion out of the ceremony.

John Whitehead said that there is some hope in the opinion, including the judge’s ruling that the school had created a “limited public forum,” not a “nonpublic forum” as the school district argued, by allowing students to choose which song they played. A limited public forum allows the government to place restrictions on speech as long as the limits are viewpoint neutral and reasonable, whereas a nonpublic forum is “subject to less [judicial] scrutiny,” according to the court’s ruling.

The facts of the case, which are not disputed by either side, are the kind of “good facts” that make for a strong Constitutional case, Whitehead said.

“This case doesn’t square with the Supreme Court,” John Whitehead said. “We are seeing the [lower] courts coming down on religion in schools. It’s a little scary because it’s extending into areas where you have to guess if it’s religious or not. I’m dismayed by the amount of control they are giving to the schools.”

The court, pointing to the “hazy border” between a student’s right to free expression and the school’s obligation not to sponsor a religious viewpoint, said “school administrators run the risk of being whipsawed by the First Amendment’s Free Speech and Establishment Clauses.”

John Whitehead said the case is clear.

“What’s the haze?” John Whitehead said. “We are not talking about proselytizing. … We are teaching these kids that they have no rights. These are public schools and the Constitution still applies.”

For More Information:

Nurre v. Whitehead, No. 06-00901 (W.D. Wash. Sept. 20, 2007).