WASHINGTON, DC (Press Release)–Voicing the concern that arts education in the public schools is in danger of being sanitized of any art with remotely religious themes or inspiration, The Rutherford Institute has asked the U.S Supreme Court to weigh in on a case in which public school officials banned the performance of an instrumental arrangement of Franz Biebl’s “Ave Maria” at a high school graduation simply because the superintendent feared it might be religious.
In asking the Supreme Court to hear the case of Nurre v. Whitehead, Institute attorneys point out that the school’s ban was tantamount to an unreasonable restriction on free speech because no religious lyrics would have been included in the performance.
A copy of the Nurre petition is available here.
“Schools cannot ban performances and restrict students’ right to free expression simply because they fear those forms of expression might have some minimal connection to religion,” said John W. Whitehead, president of The Rutherford Institute. “The censorship in this case involves political correctness run amuck, with art and student expression sacrificed to a heckler’s veto that seeks to sanitize even the remotest vestige of religion from public life.”
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.
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, allegedly because she believed the piece to be religious in nature. The ensemble was then instructed to select a piece for graduation that was entirely secular in nature.
Attorneys for The Rutherford Institute filed suit against the school district in June 2006 on behalf of Kathryn Nurre, a member of the high school woodwind ensemble. 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.”
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Preceding provided by the Rutherford Institute