9th Circuit: It Was OK To Ban Ave Maria From High School Graduation Ceremony

In a 2-1 decision yesterday in Nurre v. Whitehead, (9th Cir., Sept. 8, 2009), the U.S. 9th Circuit Court of Appeals held that school officials did not violate a student's free speech rights when they barred her from performing an instrumental version of Ave Maria at her Everett, Washington high school's graduation ceremony. Responding Judge Smith's dissent, the majority in an opinion written by Judge Tallman said:

... [W]e do not seek to remove all religious musical work from a school ensemble's repertoire. Nor do we intend to substantially limit when such music may be played. We agree ... that religious pieces form the backbone of the musical arts. To ignore such a fact would be to dismiss centuries of music history. Instead, we confine our analysis to the narrow conclusion that when there is a captive audience at a graduation ceremony, which spans a finite amount of time, and during which the demand for equal time is so great that comparable non-religious musical works might not be presented, it is reasonable for a school official to prohibit the performance of an obviously religious piece.

Bay City News yesterday reported on the decision.