On The Front Lines
Refusing to Hear Nurre Case, U.S. Supreme Court Lets Stand Ban on Instrumental 'Ave Maria', Fails to Protect Student Artistic Expression
WASHINGTON, DC--Despite concerns that arts education in the public schools is in danger of being sanitized of any art with remotely religious themes or inspiration if a lower court ruling in Nurre v. Whitehead is not reversed, the U.S. Supreme Court has refused The Rutherford Institute's request to hear the case. In Nurre, public school officials prohibited the performance of an instrumental version of Franz Biebl's "Ave Maria" at a high school graduation simply because the superintendent feared it might be religious.
In voicing his disapproval of the Court's refusal to hear the case, Supreme Court Justice Samuel Alito was harshly critical of school officials. "When a public school purports to allow students to express themselves, it must respect the students' free speech rights," stated Alito in a six-page opinion on the case. "School administrators may not behave like puppet masters who create the illusion that students are engaging in personal expression when in fact the school administration is pulling the strings."
A copy of the Nurre petition is available here. Justice Alito's dissent is available here.
"Free speech in the public schools is on life support," said John W. Whitehead, president of The Rutherford Institute. "With this decision, the Supreme Court may have pulled the plug. It's a sad day for freedom in America."
In 2006, members of the senior high woodwind ensemble at Henry M. Jackson High School in Snohomish County, Wash., elected to perform an instrumental arrangement of German composer Franz Biebl's "Ave Maria" at the school's graduation ceremonies. School officials had adopted a custom of allowing 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. Previous selections included "On a Hymnsong of Philip Bliss," a popular composition based off the hymn "It is Well Within My Soul." Thus, having previously performed "Ave Maria" at a public concert, Kathryn Nurre and the other seniors in the wind ensemble unanimously chose to perform it again at their graduation ceremony on June 17, 2006. No lyrics or words would be sung or said, or printed in ceremony programs.
Despite the absence of lyrics, the superintendent refused to allow the ensemble to perform "Ave Maria" at graduation, allegedly because she believed the piece to be religious in nature. Attorneys for The Rutherford Institute filed suit against the school district in June 2006. In a 2009 dissenting opinion, Circuit Judge Milan Smith expressed 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." The Rutherford Institute asked the Supreme Court to weigh in on the case in December 2009.
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