The delicate balancing act between the Freedom of Speech and the Establishment Clause continues to come to a head.

In the latest case to come to my attention, a student Wind Ensemble voted unanimously to play an instrumental version of Ave Maria at the commencement ceremony.  This is a long standing tradition, that the graduating seniors vote the piece they wish to play.  The 17 students chose this piece, which they had performed as a school concert a few years earlier, because they enjoyed playing it. 

No lyrical accompaniment was to be used, and no lyrics were to be printed, it was 100% instrumental.  No one handed out tracts or brochures.

The Superintendent of the district, Dr. Carol Whitehead still vetoed it.  It was still too religious.

Teen sues district after "Ave Maria" silenced

For years, seniors in the wind ensemble at Henry M. Jackson High School have selected a favorite piece of music to play during commencement.

For last month’s ceremonies, the 17 students chose an instrumental version of "Ave Maria," which they had performed at a school concert in December 2004.

But their choice was vetoed by Dr. Carol Whitehead, superintendent of the Everett School District. Instead, the ensemble played a selection by British composer Gustav Holst.

Now Kathryn Nurre, an 18-year-old who played alto saxophone in the ensemble before graduating, is suing Whitehead, claiming the decision violated her First Amendment right to freedom of speech. She believes "Ave Maria" was nixed by Whitehead because she felt the song was too religious for a school-sanctioned event.

"It was our graduation and it was our choice to pick the piece, and we didn’t think they should be able to tell us we couldn’t," said Nurre, who filed the suit at her mother’s suggestion. "I was all for it [the suit] because I didn’t know there was anything I could do."

The lawsuit, filed Monday in U.S. District Court in Seattle, is the latest in a string of recent controversies involving religion at graduation ceremonies, and it is likely to add to the voluminous debate about the place of religion in public schools.

In Nevada last month, Foothill High School officials cut the microphone on graduating senior Brittany McComb when her valedictory speech deviated from a pre-approved script and mentioned God and made references to biblical passages.

In Russell Springs, Ky., a federal judge last month ruled a student "chaplain" elected by the senior class could not deliver a prayer as part of commencement ceremonies because it would constitute state-sponsored speech.

"We’re in a culture war, and anything to do with religion in schools is scary for administrators," said Charles Haynes, a senior scholar at the First Amendment Center in Arlington, Va., who has written extensively on religion in schools.

Cognizant of cases like the one in Kentucky, where schools have been sanctioned for pushing religious points of view, Haynes said educators may try to stave off controversy by not allowing any speech, or music, that might be perceived as religious. The U.S. Supreme Court has made it clear public school districts should not promote religious points of view.

Whitehead did not return calls seeking comment on her decision.

Kathryn’s mother, Vicki Nurre, said neither her daughter nor the other members of the Mill Creek school’s ensemble — who unanimously voted to play "Ave Maria" — were trying to make a religious statement.

"The kids had no agenda when they picked the piece," said Vicki Nurre, of Bothell. "It was a piece they loved, it was a piece they played well … they were shocked when they were shot out of the water on this."

Lesley Moffat, the school’s band director, recorded the wind ensemble playing "Ave Maria" and gave a copy to the school’s principal, Terry Cheshire.

Cheshire, in turn, gave the recording to Whitehead, who rejected the choice of "Ave Maria" because of "her belief that the piece is religious in nature," according to the suit, even though no lyrics would be sung or printed in graduation programs.

Several composers have written versions of "Ave Maria." The most well known is the version penned by Franz Schubert in 1825.

The version selected by the Jackson High School ensemble was written in 1964 by Franz Biebl as a choral arrangement for a German firefighters’ choir.

The perceived religiosity of the piece derives from the lyrics, which in Biebl’s version were taken from a prayer that is recited daily in the Catholic Church.

The Jackson High School wind ensemble planned to play an instrumental version of the piece, however.

Vicki Nurre contacted the Rutherford Institute, a conservative legal foundation based in Charlottesville, Va., that presses hundreds of cases each year that involve questions of religious freedom and free speech. The organization attracted headlines in the mid-1990s when it assisted Paula Jones’ sexual-harassment lawsuit against President Clinton.

W. Theodore Vander Wel, who has handled Washington state cases as an affiliate attorney for the Rutherford Institute for 15 years, was enlisted as local counsel and a complaint was assembled within days of the graduation ceremony.

Mary Waggoner, a spokeswoman for the Everett School District, wrote in an e-mail: "Neither the district nor Dr. Whitehead have been served regarding the lawsuit so there is nothing to be said about it." A Seattle Times reporter e-mailed a copy to Whitehead’s assistant Wednesday at the assistant’s request.

The issues addressed by Nurre’s lawsuit fall into a tricky area of constitutional law, said Haynes, the First Amendment scholar.

Various Supreme Court decisions have made it clear that public schools cannot promote religious points of view, or include religious activities, such as the reading of a prayer, at school events, Haynes said.

At the same time, other decisions have established that if one or more students voluntarily decide to express their religious views in a paper or speech, it would be a violation for the school to censor them.

Because the Jackson High School students selected "Ave Maria" on their own, Haynes said it is highly unlikely any court would find the school district should have prevented it.

The fuzzier question is whether Whitehead was within her rights to forbid the playing of "Ave Maria."

"They may allow it, but do they have to allow it?" Haynes said. "This is not entirely settled, how much power a school has in this kind of situation."

The issue has become one of oversensitivity and overreaction versus freedom in the name of diversity and tolerance.  Political correction has taken over and shoved artistry into a shoebox in the closet.

Granted some religious people do push hard for confrontations…there are overreactions on their side too.  My position is that when people try to force the religious aspects to make a point, they should be ashamed. 

In this case though, I just don’t see that as having happened.  Schubert’s Ave Maria is a recognized classical masterpiece.

Like it or not, in this particular case, this was a stupid overreaction.  The song had no overt intrinsic religious value.  I would wager most people would not even recognize it as such.

Maybe Dr. Whitehead (Everett loves all the PHDs in their staff, they parade the credentials constantly) never took a music class as a part of her doctorate, or just forgot that classical music was sometimes religious.  Like a lot of our culture, the music reflected the times, and shouldn’t be outlawed on that basis when it is being used for its artistic value, not for evangelism.

In other words, it sounds pretty, let them play it.

Question to the learned Dr Whitehead and all of her PC crazed ilk:  Why must we continue to throw the baby out with the bathwater to create a lifeless sterile culture that cares more for tolerant correctness then it does art?

And when art is blatantly anti-religious, and is not only acceptable, but encouraged, it leaves us with an imbalance that is, in my opinion, unhealthy and counterproductive to creativity.

So in Everett, let’s dig through the classical music files and clip out all the one ones that have any hint of religion.  Bach, Beethoven, Handel, Mozart, Mendelssohn, Debussy and of course, that darn Schubert are all at risk.

But that’s OK, maybe the Wind Ensemble can do a nice safe Streisand medley…oh wait, maybe not…seems Babs did Ave Maria on her Christmas album a few years ago, as well as a whole album of (gasp) spiritual songs.  The horror.

Sorry Babs, you have been proscribed too.

And as usual, the ACLU was nowhere to be seen.

Disclaimer:  I used to live in Everett, and 3 of my 4 children attended their schools, though not this particular one.  In all three cases, I had to defend my children’s rights against all manner of intolerant stupidity, and I am fairly disgusted with them as a whole.  Dr Whitehead was around then, and was nice enough to ignore my emails requesting assistance.  We chose to move to another district rather then continue dealing with their madness. 

The point is that I am heavily biased through personal experience against this school district.

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