SEATTLE — A federal appeals court has ruled that the Everett School District was on solid legal ground when it banned for religious reasons an instrumental version of “Ave Maria” from being performed at a 2006 high school graduation.
Kathryn Nurre, a Henry M. Jackson High School graduate who brought the lawsuit, said Tuesday she plans to appeal the ruling to the U.S. Supreme Court.
“I feel if someone doesn’t fight, nobody will,” Nurre said.
Nurre’s lawsuit contends the school district violated her free speech and religious rights. Graduating seniors in Jackson’s wind ensemble had selected for commencement an instrumental version of Franz Biebl’s “Ave Maria,” which derives its name from a Catholic prayer and translates to “Hail Mary” in Latin.
School district administrators balked at the selection, saying that music for graduation should be “entirely secular.”
Two 9th U.S. Circuit Court of Appeals judges agreed with the original federal court decision backing the district.
The third federal judge, Milan D. Smith, disagreed with part of the ruling, writing that it would cause school officials “to chill — or even kill — musical and artistic presentations by their students” in school-sponsored events “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 may be.”
Backers of efforts to keep religion out of school praised the ruling.
“Of course, most people know it is religious music,” said the Rev. Barry W. Lynn, executive director of Washington, D.C.-based Americans United for Separation of Church and State, which filed a brief in the case supporting the school district. “They know it is ‘Hail Mary’ and it’s written as a glorification of God.”
Lynn said school administrators are right to ensure that a school program doesn’t appear to favor one religion over others.
“Hymns are appropriate for church, but not public school graduations,” said Lynn, a lawyer and pastor with the United Church of Christ.
John Whitehead, president and co-founder of the Virgina-based Rutherford Institute, a conservative legal organization that specializes in religious rights cases and represented Nurre, said he was disappointed with the ruling.
“This ‘Ave Maria’ is not the ‘Ave Maria’ we all know,” he said. “It’s the version no one knows.”
“I think this is more political correctness than anything,” Whitehead said.
Whitehead said the same logic could be used to keep the Beatles’ “Let It Be” out of schools because of the lyrics: “When I find myself in times of trouble, Mother Mary comes to me, speaking words of wisdom, let it be.”
Everett officials said they were glad the appeals court ruled in the school district’s favor.
“It confirms what we have felt all along,” said Mary Waggoner, a school district spokeswoman. “It affirms that we had acted within the scope of the law and our responsibilities. Our responsibility is to not exclude anyone. Graduation ceremonies need to be open and welcome to people of all beliefs.”
Smith, one of the appeals court judges, wrote the district could have been faced with a lawsuit if students had performed “Ave Maria.”
“I readily acknowledge that no bright lines exist in this complex field of First Amendment law, and I sympathize with school officials, who often find themselves in a Catch-22, subject to criticism and potential lawsuits regardless of the position they take,” he wrote.
In 2005, the year before “Ave Maria” was pulled from the graduation ceremony, the student choir performed at graduation “Up Above My Head,” a vocal piece that included references to “God,” “heaven,” and “angels.”
After the ceremony, the district received complaints and there were newspaper letters to the editor complaining about religious statements included in the ceremony’s music.
“Had we not taken the action we had taken, we could very easily have found ourselves in court from people who felt it should not be played,” Waggoner said.
Eric Stevick: 425-339-3446, stevick@heraldnet.com.
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