So I agree with the result of the recent ruling in Nurre v. Whitehead, No. 07-35867 (9th Cir. Sept. 8, 2009). There, the Ninth Circuit held that a Washington state public school system superintendent's decision to bar playing Franz Biebl's version of "Ave Maria" at the upcoming graduation ceremony because of its "religious connotations" did not violate the free speech rights of a high school alto sax player. In general, the Constitution doesn't enshrine the principle to sue your principal. Cf. Safford Unified School Dist. # 1 v. Redding, No. 08-479, Part IV (June 25, 2009).
But. . .
Senior student-musicians historically picked the graduation theme. The text of Ave Maria is unquestionably liturgical. Yet, the school group was a wind-ensemble, so no "religion" would have been sung. The sole intrusion of faith into the function would have been, as the dissent noted (slip op. at 12756), in the printed program.
Again, I agree that the Constitution normally doesn't entitle students to second-guess public school policies. But religious freedom isn't freedom from religion. So, I also agree with National Review senior editor Jay Nordlinger, in the November 2nd issue (subscription-only for now):
We have reached a pass where, if we hear the word "God," or even "angels" and "heaven," we say, "Eek, a mouse!" American life has always been soaked in religion, from the Pilgrims to Abraham Lincoln to Martin Luther King and beyond. If American life, including graduation ceremonies, is purged of religion, American life is something new and twisted. Given the importance of religion to man in general, it is barely life itself.Conclusion: Our system properly is secular. Yet religion underlies history and government. So faith influenced many laws--six of the Ten Commandments are codified in most criminal codes--because it can be an element of voter and legislator judgment.
The problem with Biebl’s Ave Maria, in its wind-ensemble version, was the title alone. If the kids had told the principal that it was called "Against the Despoliation of the Environment," or "Ode to President Obama," that would have been fine, you can bet. No one in the audience would have been guilty of thought-crime. Many composers draw inspiration from God and religion when they put pen to paper, no matter what their titles. Should they tell [the superintendent] when they have received such inspiration, just in case?
Biebl’s Ave Maria is a beautiful tune, not a budding theocracy. But litigation isn't the answer; democracy is. For the band to beat the ban, elect a new school board wanting to hire a more open-minded superintendent.
They call that tolerance--which is intolerable only where the object is conservative.