The Ninth Circuit affirmed a lower court decision finding that a school district did not violate the Constitutional rights of a student when it prohibited her from performing an instrumental version of “Ave Maria” at her high school’s graduation. The Court noted that music, even purely instrumental music, is “speech,” but found that the student’s First Amendment right to free speech was not violated when the school restricted musical selections at graduation in order to avoid controversy. The Court noted that graduation is an event of limited duration with a captive audience, an event where it would be difficult to adhere to the district’s normal policy of balancing secular and non-secular musical pieces. Under these specific circumstances, the Court found it reasonable to restrict the musical selections. The Court further held that the district had not acted in a manner that could constitute hostility toward religion in violation of the Establishment Clause. The Court found that the District satisfied the three prongs of the Lemon test, as it imposed this requirement in an effort to comply with the Establishment Clause and there was no excessive entanglement caused by this single restriction. The Court clarified that it was not holding that the performance of a musical selection such as “Ave Maria” would violate the Establishment Clause, only that it was reasonable to restrict the performance in light of the circumstances present in this case. The decision highlights the “legal labyrinth” of students’ First Amendment rights to free speech, where districts must balance students’ free speech rights with their own efforts to avoid violations of the Establishment Clause.
Nurre v. Whitehead, 2009 U.S. App. LEXIS 20025 (9th Cir. 2009).