Key Cases: Kathryn Nurre

Traditionally, the senior members of the woodwind ensemble, the top performing instrumental group at Henry M. Jackson High School in Snohomish County, Wash., have selected a piece to perform during graduation ceremonies. Having performed Franz Biebl’s “Ave Maria” at a public concert in 2004, the seniors in 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, the 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, an alto 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.

In September 2007, a federal district court upheld the school's decision, and two years later a federal appeals court reaffirmed, ruling that although instrumental music is constitutionally-protected expression, the district's decision was justified in order to avoid controversy. Circuit Judge Milan Smith filed a dissenting opinion expressing 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."

"This case is a perfect example of the extremes to which school officials will go in their efforts to sanitize our nation's public schools of anything even remotely related to religion," 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. The Rutherford Institute plans to appeal to the U.S. Supreme Court.

Click here to read about more key cases.