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.
"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.
There are other subtle constitutional distinctions. In 2006, graduating senior Brittany McComb submitted her valedictory speech to the school district for its review. They excised portions of the speech referring to Christ and quoting Scripture. McComb saw this as censorship and, although a teacher told her that the school had instructed him to cut off McComb's microphone if she went ahead with her religious remarks, she gave her full version instead. Her microphone promptly went dead, and a few minutes later, McComb sat down. Another valedictorian went on to give a school-approved speech about her "Heavenly Father." "I would be nothing without Him," she said.
Here, the stated distinction is that individual free speech becomes school-sponsored speech if the school has a say in approving the remarks. In 2003, the U.S. Department of Education released guidelines on acceptable religious speech as part of the No Child Left Behind law. The guidelines state that in cases where student speakers "retain primary control over the content of their expression, that expression is not attributable to the school" and can include religious content. However, if school officials "determine or substantially control the content," then the speech may not include prayer or religious content. This distinction applied to McComb's speech since she submitted her remarks for the school's approval.
To further cloud the matter, the 9th Circuit Court has forbidden school speeches that proselytize. If another student spoke of her "Heavenly Father," what's the difference between "proselytism" and "inspirational"? It can mean the difference between saying "I," which is personal, and "You," which aims to persuade. McComb said, "God's love is so great that He gave His only son up to an excruciating death on a cross so His blood would cover all our shortcomings and our relationship with Him could be restored. And He gave us a choice to live for ourselves or to live for something greater than ourselves-eternity and His Love." The lawyers for the school district called this "proselytism." McComb's lawyers ask why it's not protected speech. Charles Haynes, senior scholar with the First Amendment Center, says distinctions like this make it difficult for school officials: "They're not sure what to do."
Haynes said the Nurre case does signal to administrators that they can censor students if they decide to do something that promotes a possible message suggesting school endorsement of religion: "And I think it goes too far in that direction and I think it will have a chilling effect on student religious expression."
What did Jackson High School's wind ensemble play? "Pomp and Circumstance." A British songwriter set lyrics to that march in 1902, with the title "Land of Hope and Glory." It includes this line: "God who made thee mighty, Make thee mightier yet."