School Blocks Wind Ensemble from Playing ‘Ave Maria’ at Graduation for Church/State Fears

SEATTLE, Wash.—Attorneys for The Rutherford Institute have filed a First Amendment lawsuit in defense of the rights of a member of a high school wind ensemble to perform an instrumental arrangement of “Ave Maria” at the school’s graduation ceremony.

The case centers on a school official’s refusal to allow the senior high woodwind ensemble to perform their choice of an instrumental arrangement of German composer Franz Biebl’s “Ave Maria” at the school’s graduation ceremonies. In the complaint, which was filed in U.S. District Court in Seattle, Wash., Institute attorneys charge that the school superintendent’s unfounded concerns about the religious nature of the piece and subsequent move to veto the ensemble’s decision to perform the piece at their graduation ceremony violated the First and Fourteenth Amendment rights of the senior members of the woodwind ensemble.

“This case is a perfect example of the ridiculous extremes to which school officials will go in their efforts to sanitize our nation’s public schools of anything even remotely related to Christianity,” said John W. Whitehead, president of The Rutherford Institute. “Schools cannot ban performances and restrict students’ right to free expression whenever those forms of expression might have some minimal connection to religion. This is a case of clear and open hostility towards religion—Christianity, in particular.”

Traditionally, school officials at Henry M. Jackson High School in Snohomish County, Wash., have allowed the senior members of the high school’s top performing instrumental group, the woodwind ensemble, to choose a song from their repertoire to perform as a farewell during graduation ceremonies. Having performed Franz Biebl’s “Ave Maria” at a public concert in 2004, which was attended by students, parents, faculty and members of the public, the wind ensemble unanimously chose to perform it again at their graduation ceremony on June 17, 2006, because they felt its aesthetic beauty and peacefulness would be appropriate for the tone of the ceremony.

The senior members proposed to perform Biebl’s piece instrumentally; no lyrics or words would be sung or said, nor did the senior members intend that any lyrics would be printed in ceremony programs or otherwise distributed to members of the audience. However, despite the absence of lyrics, Dr. Carol Whitehead, superintendent of Everett School District No. 2, refused to allow the ensemble to perform “Ave Maria” at their graduation ceremony because she believed the piece to be religious in nature.

In response, attorneys for The Rutherford Institute filed a First Amendment lawsuit against the superintendent on behalf of graduating senior Kathryn Nurre, a saxophonist with the wind ensemble and one of the 17 senior high students who selected “Ave Maria” for the graduation ceremony. As Institute attorneys pointed out in their lawsuit, the superintendent’s actions violated the students’ rights to freedom of speech, to be free from hostility to religion and to equal protection under the law.

Have we lost ALL REASON?

We (conservatives) have not. But liberals never had it, which is why we now suffer through stories like this, which are becoming more and more common.

I find it astonishing how the Establishment Clause has been so grossly misinterpreted over the years, not only by the general public (who think it includes the phrase 'separation of church and state') but by the Supreme Court, who have made application of it a procedure that Rube Goldberg would shake his head at in amazement.

And Sandra Day O'Connor was a big offender in that area...glad to see her step down!

This case and many like it point to much confusion on the law and the constitition. Both sides of the popular left and right usually get it wrong.

This was a school function. It was not a classroom being used by a religious community group or student prayer club. Free speech in this setting is very well protected by established case law. And it is well determined that the Establishment Clause does not prohibit schools from using the facility this way.

But at a graduation, as a school function, the rights narrow slightly. The superintendent is under no obligation to ban any speech simply because it has religious content. The law is very clear on that. So if Hindu or Buddist or Muslims want to speak in praise of their gods, the Christians in the room cannot demand the superintendent to stop them.

But being obligated to ban something is different than not being able to ban something and here the law is a little murkier.

First, just as a superintendent can ban speech that contains lewd language or obscenities, he can also ban speech that calls for "Death to the infidels", "To Repent Now!", "Ms Whitehouse is a Whore!", or anything that is disruptive or disturbing the the purpose and intent of the school function. In short, the law generally supports letting the superintendent run the school as he wishes to keep good order and make learning happen.

So the issue the courts will be looking at is if this song, even without lyrics, would offend people in the gathering so much that from a largely PRACTICAL matter (not constitutional matter) the intent and purpose of the event would be diminished. The fact that the students have traditionally picked the music and that the song was played at another school event will have bearing, but are not the determining factor.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.