Public School Does Not Have To Include Religious Music At Graduation, Says Court

A federal appeals court ruled Sept. 8 that officials at an Everett, Wash., school district were within their rights to omit religious music from a graduation ceremony.


The dispute began in 2006 when students at Everett School District No. 2 sought to perform an instrumental version of “Ave Maria,” (Latin for “Hail Mary”) during graduation ceremonies.


School officials, mindful of a controversy that had erupted the year before over religious music at graduation, removed the song from the program and replaced it with a non-religious piece.


One of the student members of the wind ensemble, Kathryn Nurre, subsequently sued school officials, asserting that her free-speech and equal-protection rights had been violated. Among those named in the suit was Superintendent Carol Whitehead.


In court, Nurre was represented by the Rutherford Institute, a legal group based in Charlottesville, Va., that often argues that students have a free-speech right to include religious material in school work and events.


The 9th U.S. Circuit Court of Appeals disagreed, ruling 2-1 in Nurre v. Whitehead that school officials have the right to ensure that a public ceremony like graduation does not have religious overtones.


“[T]he District’s action in keeping all musical performances at graduation ‘entirely secular’ in nature was reasonable in light of the circumstances surrounding a high school graduation, and therefore it did not violate Nurre’s right to free speech,” the court majority held.


Judge Milan D. Smith Jr. dissented in part. Smith asserted that school officials are immune from such lawsuits but went on to argue that the school had violated Nurre’s rights. He fretted over the possibility that “the practical effect will be for public school administrators to chill – or even kill – musical and artistic presentations by their students….”


Public education officials, however, argue administrators must have the right to control the content of graduation and other school-related events.


Americans United for Separation of Church and State, which filed a friend-of-the-court brief in the case siding with the school district, hailed the ruling.


“This is a good decision,” said Barry W. Lynn, executive director of Americans United. “Public schools serve students from diverse backgrounds, so it’s vitally important that commencement ceremonies be inclusive.


“Graduation is an important event, and all students and their families should feel welcome,” Lynn continued. “Public school administrators are right to ensure that the program doesn’t appear to favor one religion over others. Hymns are appropriate for church, but not public school graduations.”