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Ellen M. Banner/The Seattle Times/Newscom

It's the pronouns, stupid

Education | Acceptable religious expression at graduation time can be a matter of pomp and circumstance

Issue: "GOP idea man," May 22, 2010

It was the biggest moment of Kathryn Nurre's life-until her federal court case, that is. It was 2006, and Nurre was graduating from Henry M. Jackson High School in Snohomish County, Wash., and playing alto saxophone with the wind ensemble during commencement.

When the seniors met with their band director to pick a piece for the ceremony, they remembered the past few classes chose to play "On a Hymnsong of Philip Bliss." Why not choose something different? So the students unanimously settled on a challenging piece they'd already performed at a school concert: "Ave Maria." Not the familiar tune by Franz Schubert but a less familiar one by Franz Biebl. The music director sent a note to school officials, noting in bold that the song would be "not sung" but played. But the year before a student had sung a spiritual called "Up Above My Head" and someone complained in a letter to the editor of the local newspaper. Administrators, worried about the piece's religious nature and bad press, told the students to choose something else.

The band, with commencement nearing, suggested a compromise: List the instrumental piece on the program as "A Piece by Franz Biebl" with no title. School administrators refused.

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"Our class was the only class that they told we couldn't actually play the piece that we wanted to play," recalls Nurre. "I was just upset that we weren't allowed to."

She decided to take the case to court, suing the district for censorship and hostility toward religion. She's an evangelical Protestant, not a Catholic, so she says she wouldn't even pray the Ave Maria. Still, she said, if the school said students could choose the piece, why was their choice vetoed?

The Supreme Court decided earlier this year against hearing Nurre's case, letting stand the ruling of the 9th Circuit Court of Appeals: School officials could prohibit students from playing the piece. Justice Samuel Alito dissented, saying the Supreme Court should hear the case since the 9th Circuit's decision "authorizes school administrators to ban any controversial student expression at any school event attended by parents and others who feel obligated to be present."

The battle over individual religious expression at school-sponsored events continues into events surrounding the Class of 2010-made hazy by the fact that lower courts have a history of leaving religious speech matters to the judgment call of administrators, and the Supreme Court rarely hears high-school cases like that brought by Nurre. Some of these cases come down to fine distinctions: "How many crosses in a church?" "Did she say 'you' or 'I'?" These differences may mean that school districts are exerting caution some students find overbearing.

Two ongoing cases show why-because a school can find itself the target of an anti-religious lawsuit. At Enfield School District in Connecticut, the high schools have held their graduation ceremonies in a church, First Cathedral, for the past several years. They used to be held at a district outdoor field, but now the field has Astroturf and the manufacturer won't insure it if non-athletic events are held there, said Vincent McCarthy, Enfield's attorney and senior northeast counsel for the American Center for Law and Justice.

So instead the school district has held the ceremonies at First Cathedral in Bloomfield, which holds 3,000 people and costs $8,500 for each graduation-a total of $17,000 for the district's two high-school graduations. In a letter of complaint, the ACLU suggested other venues, but most of them are much more expensive: $16,000-$19,000 for the Bushnell Center for the Performing Arts in Hartford, which is about 20 miles from the high schools and has only 2,800 seats. This would mean at least $32,000 for the district's two graduations-the total budget they've allocated for graduation expenses.

Questions like this often come down to, just how much does it look like a church? And that may be a matter of perception. First Cathedral is probably the least religious-looking church they could have chosen, said McCarthy: "If you went inside it, it looks like a civic center." Two vertical banners have religious wording, but he thinks they could be removed: "It isn't St. Patrick's Cathedral, that's for sure."

But the ACLU complains of crosses on the outside of the building, a cross fountain in the lobby, and a cross in the stained glass window overlooking the students during the ceremony. The District is trying first to settle the dispute without going to court.

In another case in Greenwood, Ind., the school district allowed students to vote during a school assembly on having a graduation prayer. The students voted yes, but a senior sought a permanent injunction against the school district to stop the prayer, and on April 30 a judge granted the injunction.

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