No. 09- upreme £aurt of toe " niteb tate KATHRYN NURRE, V. Petitioner, DR. CAROL WHITEHEAD, in her individual and official capacity as Superintendent of Everett School District No. 2, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR WRIT OF CERTIORARI W. Theodore Vander Wel Counsel of Record VANDER WEL, JACOBSON , BISHOP & KIM, PLLC 10500 NE 8th Street Suite 1900 Bellevue, WA 98004 (425) 462-7070 Participating Attorney on Behalf of The Rutherford Institute John W. Whitehead Douglas R. McKusick THE RUTHERFORD INSTITUTE 1440 Sachem Place Charlottesville, VA 22901 (434) 978-3888 James J. Knicely Knicely & Associates, P.C. 487 McLaws Circle, Suite 2 Williamsburg, VA 23185 (757) 253-0026 Counsel for the Petitioner LANTAG~E LE~.’IAL PI~iNTII’,iG 80~ East Main Street Suite 100 i~ichmc,~,d, Vi~ima 232~ (8001 847-0477
Transcript
No. 09-
upreme �£aurt of toe " niteb tate
KATHRYN NURRE,
V.Petitioner,
DR. CAROL WHITEHEAD,in her individual and official capacity as
Superintendent of Everett School District No. 2,Respondent.
On Petition for Writ of Certiorari to theUnited States Court of Appeals
for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
W. Theodore Vander WelCounsel of RecordVANDER WEL, JACOBSON,BISHOP & KIM, PLLC10500 NE 8th StreetSuite 1900Bellevue, WA 98004(425) 462-7070Participating Attorney onBehalf of The RutherfordInstitute
John W. WhiteheadDouglas R. McKusickTHE RUTHERFORD INSTITUTE1440 Sachem PlaceCharlottesville, VA 22901(434) 978-3888
James J. KnicelyKnicely & Associates, P.C.487 McLaws Circle, Suite 2Williamsburg, VA 23185(757) 253-0026Counsel for the Petitioner
LANTAG~E LE~.’IAL PI~iNTII’,iG80~ East Main Street Suite 100 i~ichmc,~,d, Vi~ima 232~ (8001 847-0477
Blank Page
QUESTION PRESENTED
Does the censorship of a student-selected,instrumental-only performance of "Ave Maria"within a limited public forum at a high schoolgraduation ceremony violate the First Amendment’sFree Speech Clause?
ii
PARTIES TO THE PROCEEDINGS
Petitioner in this case is Kathryn Nurre.Respondent is Dr. Carol Whitehead, in herindividual and official capacity as Superintendent ofEverett School District No. 2, a governmental entitycreated, existing and operating under the laws of theState of Washington.
Opinion of the United States Court of Appealsfor the Ninth Circuit entered September 9,2009... la
Order and Opinion of the United States DistrictCourt for the Western District of Washingtonentered on September 20, 2007 ..........................32a
Graduation Ceremony Program for Henry M.Jackson High School Class of 2006, June 17,2006 ........................................................................72a
iv
Everett School District No. 2 School BoardProcedure 2340P titled "Religious-RelatedActivities and Practices" ...................................77a
Electronic Mail Message from Karst Brandsmato High School Principals dated June 2,2006.................................................................... 83a
Electronic Mail Message from Stuart Huntto Lynn Evans dated June 7, 2006 ..................84a
V
TABLE OF AUTHORITIES
Cases
Americans United for Separation of Church andState v. City of Grand Rapids, 980 F.2d 1538 (6th
City of Cleburne, Texas v. Cleburne Living Center,Inc., 473 U. S. 449 (1985) .......................................17
Cohen v. California, 403 U.S. 15 (1971) ...................23
Consolidated Edison Co. of New York, Inc. v. PublicService Commission of New York, 447 U.S. 530(1980) ...................................................................... 23
Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402,407 (5th Cir. 1995) .................................................. 22
Erznoznik v. City of Jacksonville, 422 U.S. 205(1975) ...................................................................... 20
First National Bank of Boston v. Bellotti, 435 U.S.765 (1978) ............................................................... 23
Good News Club v. Milford Cent. School, 533 U.S. 98(2001) ............................................................... passim
Holloman ex rel. Holloman v. Harland, 370 F.3d1252 (11th Cir. 2004) .............................................. 25
Hurley v. Irish-American Gay, Lesbian and BisexualGroup of Boston, 515 U.S. 557 (1995) ................... 15
Lamb’s Chapel v. Center Moriches Union Free SchoolDist., 508 U.S. 384 (1993) ..........................16, 22, 27
Lee v. Weisman, 505 U. S. 577 (1992) .................18, 19
Lehman v. City of Shaker Heights, 418 U.S. 298(1974) ......................................................................19
Lynch v. Donnelly, 465 U.S. 668 (1984) ...................22
vi
Mergens v. Westside School District, ~.t96 U.S. 226(1990) ....................................................................... 22
Muller v. Allen, 463 U. S. 388 (1983) .......................22
Nurre v. Whitehead, 520 F. Supp. 2d 1222 (W.D.Wash. 2007) .............................................................. 1
Nurre v. Whitehead, 580 F.3d 1087 (9th Cir. 2009) ....1
Rosenberger v. Rector and Visitors of Univ. of Va.,515 U.S. 819 (1995) .........................................passim
Spence v. Washington, 418 U.S. 405 (1974) .............15
Thornburgh v. Abbott, 490 U.S. 401 (1989) .............17
Tinker v. Des Moines, 393 U.S. 503 (1969) ........passim
Van Orden v. Perry, 545 U.S. 677 (2005) .................22
Widmar v.Vincent, 454 U.S. 263 (1981) .............22, 24
Witters v. Svcs. for the Blind, 474 U.S. 481 (1986).. 22
Zobrest v. Catalina Foothills School District, 509U.S. 1 (1993) ............................................................ 22
U.S. Const. amend. I ..........................................passim
Other Authorities
Der Ring des Nibelungen,http://www.economicexpert.com/a/Der:Ring:des:Nibelungen.htm ......................................................... 28
vii
Elgar, His Music - Pomp and Circumstance,http: //www.elgar.org/3pomp-b.htm ....................11
Everett School District No. 2 School Board Procedure2340P, "Religious-Related Activities andPractices" ..............................................................2, 8
Franz Biebl Biography,http://www.classiccat.net/biebl_f/biography.htm. 28
List of Bach’s Works,http://jsbach.org/completecategory.html ...............27
List of Beethoven’s Works,http://www.lvbeethoven.com/Oeuvres/ListOpus.html ........................................................28
List of Brahms’ Works, http://w3.rz-berlin.mpg.de/cmp/brahms_works.html ...............28
List of Haydn’s Works,http://www.classicalarchives.com/haydn.html .....27
List of Mendelssohn’s Sacred Works,http://www.classical.net/music/composer/works/mendelssohn/stage.php#sac .......................................28
List of Schubert’s Sacred Works,http://www.franzschubert.org.uk/works/sacred.html .............................................................28
Richard Zoglin, Bye Bye, Birdie. Hello, Rent, TIME,May 15, 2008, at 51 ................................................ 29
Blank Page
IN THEDupreme ¢~urt of t!~e i~nitel~ Dtate~
No. 09-
KATHRYN NURRE,Petitioner,
V.
DR. CAROL WHITEHEAD,in her individual and official capacity as
Superintendent of Everett School District No. 2,Respondent.
On Petition for Writ of Certiorarito the United States Court of Appeals
for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW
The divided panel opinion of the United StatesCourt of Appeals for the Ninth Circuit is reported asNurre v. Whitehead, 580 F.3d 1087 (9th Cir. 2009),and is set forth in the Appendix beginning at la.The opinion of the district court is reported asNurre v. Whitehead, 520 F. Supp. 2d 1222 (W.D.Wash. 2007), and is set forth in the Appendixbeginning at 32a.
2
STATEMENT OF JURISDICTION
The judgment of the court of appeals wasentered on September 8, 2009. This Court hasjurisdiction over this matter pursuant to 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORYPROVISIONS
The First Amendment to the United StatesConstitution provides as follows:
Congress shall make no law respectingan establishment of religion, orprohibiting the free exercise thereof; orabridging the freedom of speech, or ofthe press; or the right of the peoplepeaceably to assemble, and to petitionthe Government for redress ofgrievances.
Everett School District No. 2 School BoardProcedure 2340P titled "Religious-Related Activitiesand Practices" provides, in relevant parts, as follows:
I. Religious services, programs orassemblies shall not be conducted inschool facilities during school hours orin connection with any school sponsoredorschool related activity. Speakersand]or programs that convey a religiousor devotional message are prohibited.
3
This restriction does not preclude thepresentation of choral or musicalassemblies, which may use religiousmusic or literature as a part of theprogram or assembly.
Musical, artistic and dramaticpresentations, which have a religioustheme maybe included in course workand programs on the basis of theirparticular artistic and educationalvalue or traditional secular usage. Theyshall be presented in a neutral, non-devotional manner, be related to theobjective of the instructional program,and be accompanied by comparableartistic works of a non-religious nature.
Since a variety of activities are includedas part of a holiday theme, care mustbe exercised to focus on the historicaland secular aspects of the holidayrather than its devotional meanings.Music programs shall not use thereligious aspect of a holiday as theunderlying message or theme.Pageants, plays and other dramaticactivities shall not be used to conveyreligious messages. Religious symbolssuch as nativity scenes, if used, shall bedisplayed in conjunction with a varietyof secular holiday symbols so that thetotal presentation emphasizes thecultural rather than religioussignificance if the holiday.
4
STATEMENT OF THE CASE
Petitioner Kathryn Nurre brought this actionseeking relief under 42 U.S.C. § 1983, alleging thatRespondent, Superintendent Carol Whitehead, hadengaged in unjustified censorship of expression andhad taken actions exhibiting hostility towardreligion, all in violation of Nurre’s rights under U.S.Const. amend. I. The United States District Courtfor the Western District of Washington grantedRespondent summary judgment on all the claims.71a. A divided panel of the Court of Appeals for theNinth Circuit affirmed that judgment. 2a.
In June 2006, Nurre was a student at HenryM. Jackson High School ("JHS"), a secondary schooloperated by the Everett, Washington, School DistrictNo. 2. She received her high school diploma atgraduation ceremonies held in the Everett EventsCenter on June 17, 2006.
During her senior year and ibr the twoprevious school years, Nurre was a member of theJHS Wind Ensemble, an instrumental music groupthat is the most advanced instrumental group atJHS (ER at 117)1. She played alto saxophone in theWind Ensemble and, like other members, wasselected based upon merit after auditioning. TheDirector of the Wind Ensemble was Lesley Moffat,JHS’s Director of instrumental music since the 2002-2003 school year (ER at 115-16).
1 "ER" references are to the Excerpts of Record filed in theappeal to the Court of Appeals.
5
As in previous years, the Wind Ensemble wasexpected to perform at the 2006 JHS graduationceremonies. Part of this traditional performance bythe Wind Ensemble included the selection by theEnsemble’s graduating seniors of an instrumentalwork to be performed at graduation (ER at 118, 245).In May of 2006, the Wind Ensemble seniors,including Nurre, met with Moffat about selecting apiece to play at graduation. During this meeting,the members noted that. the previous three seniorclasses had all chosen the same piece, "On aHymnsong of Phillip Bliss" (ER at 122-24, 125-26).Nurre and her fellow seniors wanted to select andplay a different song. The only serious choice thatemerged from this discussion was a piece theEnsemble had performed earlier in the year: FranzBiebl’s "Ave Maria" (ER at 125, 127, 251). Thechoice of Biebl’s 1964 composition was unanimous.2
(ER at 128, 251).
The seniors chose to play Biebl’s "Ave Maria"because of its beauty, its suitability to theEnsemble’s sound, and the memory of the song fromprevious performances (ER at 126, 264). Theperformance of "Ave Maria" would be whollyinstrumental with no singing or lyrics. Nurre andthe other seniors did not choose the piece because of
2 Biebl’s 1964 rendition of Ave Maria is completely different
from the more familiar Franz Schubert version,Op. 25, No. 6, composed in 1825. Compare the Bieblversion sung by the Cornell Glee Club athttp://www.¥outube.com/watch?v=wCXnhYgoHDw&feature=related (last viewed November 18, 2009), with theSchubert version sung by Luciano Pavarotti athttp://www.¥outube.con~watch?v=2uYrmYXsujI (last viewedNovember 18, 2009).
6
any religious message it might convey (ER at 128,258-59). The Ensemble had previously performedBiebl’s "Ave Maria" at a winter concert; the Latintitle was listed in the program for that concert. (ERat 126,246).
Music Director Moffat sent copies, of the musicto Terry Cheshire, Principal of JHS, and KarstBrandsma, the District’s Associate Superintendentfor Instruction. Moffat wrote in an accompanyingnote that the senior members chose "Ave Maria" astheir instrumental selection for the ceremony (ER at150). On the top of the musical score she forwarded,Moffat wrote in bold "Not sung," indicating therewould be no vocal parts or lyrics (ER at 175).
Principal Cheshire took note of the selectionbecause of an alleged controversy that arose relatingto the 2005 JHS graduation ceremony.. A studentchoir had performed a song titled "Up Above MyHead". The song contained references to "God" and"angels", but did not contain references to anyparticular religion.3 School officials stated during
3 As set forth at http://www.mp31yrics.org/k]kirk-franklin/up-above-m:~-head/, the lyrics are:
Up above my head I hear music in the airUp above my head there’s a melody so brightAnd fairI can hear when I’m all aloneEven in those times when I feel all hope is goneUp above my head I hear joybells ringingUp above my head I hear angels singingThere must be a God somewhereThere must be a God somewhere
I hear music in the airI hear music everywhere
deposition that they received complaints about thereligious nature of "Up Above My Head," but theonly specifically documented complaint about theearlier 2005 graduation that Respondent admitted tothe record was a single letter to the editor of a localpaper mocking the educational competence of theSuperintendent and her subordinates:
I would like to express my puzzlementover how...[the] superintendent, southarea executive director, principal andchoir director can justify classroomcivics instruction on the importance ofour national and state constitutionsspecifically relating to policy regardingreligious activity, while willfullydisregarding the same by sponsorshipof nonsecular entertainment during apublic graduation ceremony .... Is thatthe final lesson of our students’education? If, in fact, the lesson was todemonstrate the meaning of hypocrisy,an "A" grade should be awarded ....
(ER 287). Principal Cheshire contacted DistrictExecutive Director Lynn Evans, who in turncontacted Superintendent Carol Whitehead todiscuss the students’ selection of "Ave Maria" (ER at222). Whitehead then convened a meeting withEvans and Brandsma to discuss the students’selection.
There must be a God somewhere
There must be a God somewhereThere must be a God somewhereThere must be a God somewhere
8
Without student input or involvement, theadministrators unilaterally decided to prohibit theseniors from playing "Ave Maria" at the graduation(ER at 223). Whitehead testified that "we made thedecision that because the title of the piece would beon the program and it’s ’Ave Maria’ and that manypeople would see that as religious in nature, that wewould ask the band to select somethiag different"(ER at 223-24). Her sole concern and that of thoseattending the meeting was the listing of the two-word title in the program (ER at 216, 228), thoughno one at the meeting admitted to knowing what thewords "Ave Maria" meant, other than it seemed tohave a religious connotation (ER at 229). Whiteheadstated that it would not have been "appropriate" toallow the students to play "Ave Maria" withoutlisting the title in the program, even though titles tonumerous other instrumental pieces played at thebeginning of the graduation ceremonies by the JazzCombo were not identified in the printed programexcept under the more general heading "PreludeConcert." (ER at 225-26).
Following the meeting, AssociateSuperintendent Brandsma sent ane-mail atwhitehead’s direction, to high schoolprincipalsconcerning musical selections for the respective highschool graduations (ER at 148). After requesting thatthe principals provide a copy of the selections to beplayed or sung with copies of any lyrics, Brandsmanoted that School Board Policy 2340 and Procedure2340P allowed for musical presentations withreligious themes if the selections are based upontheir artistic and educational value and are
9
accompanied by comparable works of a non-religiousnature. Brandsma nevertheless insisted that
music selections for graduation beentirely secular in nature. Myrationale is based on the nature of theevent. It is a commencement programin celebration of senior studentsearning their high school diploma. It isnot a music concert. Musical selectionsshould add to the celebration andshould not be a separate event. Invitedguests of graduates are a captiveaudience. I understand thatattendance is voluntary, but I believethat few students (and their invitedguests) would want to miss theculminating event of their academiccareer. And lastly there is insufficienttime at graduation to balancecomparable artistic works.
(ER at 148).
After receiving a copy of Brandsma’s e-mail,and a discussion with Principal Cheshire, Moffatasked for clarification and suggested that theprogram simply list the piece as "A selection byFrance [sic] Biebl" (ER at 130). But Cheshire toldher that this would not be "ethical," although he didnot elaborate as to how this would be unethical (ERat 131).
10
The Respondent’s decision upset Nurre andthe other Ensemble seniors particularly becauseevery previous year seniors had selected their ownmusic without censorship. (ER at 131-32, 254) Thecensorship was difficult to understand because theEnsemble had previously performed it earlier in aschool concert (ER at 260). Rather than boycott theceremony, the seniors performed a movement fromHolst’s "Second Suite for Military Band," at the June17, 2006, graduation ceremony (ER at 132, 236).
The graduation program included numerousother student-performed instrumental and vocalselections, as well as student speakers from theClass of 2006. The JHS Jazz Combo opened thegraduation program with six separate instrumentalworks: "Freedom Jazz Dance," "Day by Day," "Let’sFall in Love," Unforgettable," "Un Poco Loco," and"Traveling Light." (ER 225) Next tbllowed theinstrumental-only processional to the tune of Elgar’s"Pomp and Circumstance," which was also used forthe recessional. (ER 146) Once in, the assembledgraduates stood to the "National Anthem," sung byAubrey Logan of the Class of 2006. (ER 146).Following opening remarks and a speech entitled"New Beginnings" by a Class Speaker, the JHSChoir performed "Mother Africa." Id.4 Two more
4 There are also lyrics to "Pomp and Circumstance" whichinclude repeating twice the following phrase: "God whomade thee mighty, Make thee mightier yet." See 85a. The2006 performances of Elgar’s "Pomp and Circumstance" atthe JHS graduation and the censorship of Biebl’s "AveMaria" also contrasts with the first performance of "Pompand Circumstance" in the United States at Yale University’s1905 graduation, which was preceded by ’Seek Him thatmaketh the seven stars’ from Elgar’s Light of Life (LuxChristi), and Martin Luther’s Eine Feste Burg (A Mighty
11
Class Speakers followed with speeches on "Echos"and "Joy, Peace, Love, Happiness" before thegraduating class was formally presented forgraduation. Id. Thus, despite the School policypermitting music with religious themes to beperformed at school programs when accompanied byworks of a non-religious nature, SuperintendentWhitehead interpreted that policy as permitting onlysecular music in the face of potential controversy atgraduation.
Nurre filed this action against the RespondentSuperintendent in her individual and officialcapacities and requesting relief under 42 U.S.C. §1983. The Complaint alleged that the Respondent’saction in refusing to allow the solely instrumentalperformance of "Ave Maria" at the graduationdeprived Nurre of her rights under (1) the FreeSpeech Clause of the First Amendment, (2) theEstablishment Clause of the First Amendment, and(3) the Equal Protection Clause of the FourteenthAmendment. After discovery, the parties filed cross-motions for summary judgment. On those motions,the District Court granted the Respondent’s motionand denied Nurre’s motion (71a), and Nurreappealed.
A divided panel of the Court of Appeals for theNinth Circuit affirmed the judgment. AddressingNurre’s First Amendment free speech claim, thepanel majority noted that the Respondent did not
Fortress). Sir Edward received an Honorary Doctor of Musicfrom Yale at the exercise. See Elgar, His Music - Pomp andCircumstance, http: / / www.elgar.org / 3pomp-b.htm (lastviewed November 17, 2009).
12
challenge Nurre’s claim that a limited public forumexisted within the context of the JHS graduationceremony, allowing senior wind ensemble memberssuch as Nurre to engage in expression by choosing apiece to perform at the ceremony (lla). However,the panel majority found the restriction on Nurre’sexpression to be reasonable because "the Districtwas acting to avoid a repeat of the 2005 controversyby prohibiting any reference to religion at itsgraduation ceremonies. District administratorsrecognized the evident religious nature of ’AveMaria’ and took into consideration the compulsorynature of the graduation ceremony." (12a).
In dissent, Judge Milan Smith declared thatNurre’s First Amendment free speech rights wereviolated and warned that the majority’s opinionwould have the practical effect of causing schooladministrators to purge student artisticpresentations of works of fundamental importanceto our cultural heritage. Assessing thereasonableness of the restriction, Judge Smith wrotethat "[i]n my view, purging such a ceremony of allvestiges of religiously inspired art and culture-including those works with even the most attenuatedconnections to religion-did not advance the purposeof recognizing and providing a forum for studentachievement." (26a-27a).
REASONS FOR GRANTING THE WRIT
The censorship in this case involves politicalcorrectness run amuck, with art and studentexpression sacrificed to a heckler’s veto that seeks tosanitize even the remotest vestige of religion from
13
public life. As the dissenting judge below warned,the practical effect of the panel majority’s opinion"will be for public school administrators to chill--oreven kill--musical and artistic presentations bytheir students in school-sponsored limited public forawhere those presentations contain any trace ofreligious inspiration[.]"(23a). The majority’s viewlegitimizes and endorses discriminatory decision-making keyed to "avoidance of controversy" andappeasement of narrow-minded social sensitivitiesbanning all religious viewpoints. It also blinks at aclear record showing that the performance waspermissible under existing School policy thatpermits the balancing of musical works to advancestudent expression and legitimate educationalobjectives. By misapplying the captive audiencedoctrine and perpetuating the legal fiction thatexpression with "religious connotations" may beproscribed at high school graduation ceremonies toavoid controversy (notwithstanding the absence ofany legitimate Establishment Clause concern), thedecision below sanctions censorship of artisticexpression without any legitimate reason.
The Ninth Circuit’s decision places at greatrisk countless opportunities for students nationwideto perform selected musical works of religiously-inspired origin. It also threatens importantpedagogical interests forming the backbone ofWestern Art and Culture. In doing so, theunderlying rationale for decision poses a significantchallenge to principles set forth in the decisions ofthis Court and other circuit courts. And because itstands for the proposition that school administratorsand other public officials may with impunity
14
sacrifice individual student expression to avoidoffending the too easily offended, it warrants plenaryreview by this Court.
In Tinker v. Des Moines, 393 U.S. 503, 510(1969), this Court made clear that student speechmay not be censored based simply on "an urgentwish to avoid the controversy which might resultfrom the expression." Writing for the Court, JusticeFortas declared that the "mere desire to avoid thediscomfort and unpleasantness that alwaysaccompany an unpopular viewpoint" is simply notsufficient without more to censor studen, t speech. Id.at 510. The protection afforded student speech bythe First Amendment is plainly implicated here inlight of the Respondent’s concession in the lowercourts that a limited public forum for expressionexisted under the established policies and practicesfor JHS graduation ceremonies. (lla) School officialsadmittedly opened the graduation ceremony forexpression by the senior wind ensemble members byallowing them to choose a piece to perform at theirgraduation. See Rosenberger v. Rector and Visitorsof Univ. of Va., 515 U.S. 819, 829 (1995) (limitedpublic forum is created when the government opensa forum for expression by certain groups on certaintopics). 5
5 There is also no serious dispute about whetherBiebl’s "Ave Maria" was constitutionally-protectedexpression. Both the district and circuit courts found thatthe music, even if performed without lyrics, constitutedexpression for purposes of the First Amendment. (9a, 43a).
15
The panel majority’s decision in this case runscounter to the principles established in Tinker andRosenberger. The majority transparently admits that"the District was acting to avoid a repeat of the 2005controversy by prohibiting any reference to religionat its graduation ceremonies."(12a). In upholdingthis action, the majority rolls back the clock tosanction pre-Tinker standardless censorship ofstudent speech simply to avoid official discomfortwith controversy. Here, Superintendent Whiteheadadmittedly stopped the seniors-selected performanceof "Ave Maria" "because it is a religious piece"(ER227), and because she wanted to avoid complaintslike those received after the 2005 graduation aboutthe religious nature of a song, not because of anycompelling state interest or constitutional mandate.(ER 86, 217-218). The Superintendent’s motivationfor the censorship was a desire to placate the anti-religious views of the writer of a solitary criticaleditorial about a song sung at the prior year’sgraduation, as well as other irrationalmisconceptions discussed below. Her decision toexclude all religious speech, in effect, excluded all
"[A] narrow, succinctly articulable message is not acondition of constitutional protection, which if confined toexpressions conveying a ’particularized message,’ cf. Spencev. Washington, 418 U.S. 405, 411 (1974) (per curiam), wouldnever reach the unquestionably shielded painting of JacksonPollock, music of Arnold Schoenberg, or Jabberwocky verseof Lewis Carroll." Hurley v. Irish-American Gay, Lesbianand Bisexual Group of Boston, 515 U.S. 557, 569 (1995)(emphasis added). Likewise, the school and district officialshad opened the graduation ceremony for expression by thesenior wind ensemble members (lla). Nurre and her windensemble classmates thus had a First Amendment interestin their choice to perform Biebl’s "Ave Maria."
16
religious viewpoints and was undertaken with theintent to eliminate those viewpoints en masse.6
In approving this censorship, the NinthCircuit panel employed forum analysis and a low-threshold view of what constitutes a "reasonable"basis for censorship. However, the "reasonableness"standard for adjudging a restriction on First
6 Although the panel majority held that "this is not a case of
viewpoint discrimination" because "Nurre concedes that shewas not attempting to express any specific religiousviewpoint, but that she sought only to ’play a pretty piece,’"(relying on selected language from Rosenberger),Superintendent Whitehead’s decision to exclude all religiousviewpoints did run afoul of Rosenberger, where this Courtnot only stated that "[d]iscrimination against speechbecause of its message is presumed to be unconstitutional(515 U. S. at 828) but also rejected the argument thatgovernment was permitted to "discriminate against anentire class of viewpoints." That argument was deemed to beflawed because it was found to rest on "an insupportableassumption that all debate is bipolar and that anti-religiousspeech is the only response to religious speech." The Courtcontinued: "[o]ur understanding of the complex andmultifaceted nature of public discourse has not embracedsuch a contrived description of the marketplace of ideas. Ifthe topic of debate is, for example, racism, then exclusion ofseveral views on that problem is just as offensive to the FirstAmendment as exclusion of only one. It is as objectionable toexclude both a theistic and an atheistic perspective on thedebate as it is to exclude one, the other, or yet anotherpolitical, economic, or social viewpoint." Rosenberger, 515U.S. at 832. Here, Whitehead’s rejection of all religiousmusic in favor of the performance of only secular music forgraduation constitutes viewpoint discrimination because itwas based on a "suspect" classification that acts to excludemultiple religious viewpoints, and permits all secularviewpoints. In both Rosenberger, and in Lamb’s Chapel v.Center Moriches Union Free School Dist., 508 U.S. 384(1993), the Court found the exclusion of all speech withreligious perspectives was impermissible viewpointdiscrimination.
17
Amendment freedoms is not "toothless."Thornburgh v. Abbott, 490 U.S. 401, 414 (1989); cf.City of Cleburne, Texas v. Cleburne Living Center,Inc., 473 U. S. 432, 449 (1985) (No rational basis forgovernmental action taken in deference to the fears,wishes or objections of some faction of the bodypolitic). Indeed, this Court held in Tinker, 393 U.S.at 509, that censorship of student speech is notreasonable if based upon an undifferentiated fear ofcontroversy. A fear of controversy was precisely thebasis identified by the Respondent and the decisionbelow as justification for prohibiting theperformance of "Ave Maria." As such, justificationfor the censorship of the performance wasconstitutionally inadequate and Nurre’s right toFree Speech was patently violated.
The Ninth Circuit’s ruling in this case is alsounreasonable in its reliance on the legal fiction thatanything having "religious connotations" must beexcised from culminating school events. Themajority’s rationale was as follows:
[W]e confine our analysis to a narrowconclusion that when there is a captiveaudience at a graduation ceremonywhich spans a finite amount of time,and during which the demand for equaltime is so great that comparable non-religious musical works might not bepresented, it is reasonable for a schoolofficial to prohibit the performance ofan obviously religious piece.
18
(13a). This holding is contrary to this Court’sprecedents on several counts.
First, Superintendent Whitehead disclaimedknowing what the words Ave Maria even meant,though she viewed it as having a "religiousconnotation." (ER 229). It should be apparent thatguesswork about "religious connotations" ought notoverride precious rights secured under the FirstAmendment’s Free Speech Clause.
Second, this Court’s seminal decisionoutlining the boundaries of religion in schoolgraduation ceremonies is Lee v. Weisman, 505 U. S.577 (1992). In Lee, the Court found a clearEstablishment Clause violation arising from theprincipal’s direct and active involvement inprescribing graduation prayer, thereby coercing acaptive audience to participate in the religiousexercise of prayer. Here, there was no religiousexercise such as a sermon, prayer or worship. Norwas there any religious message. The song was to beperformed instrumentally, with no lyrics. Schoolofficials did not select the song, the seniors did, asthey had in years before, by custom and tradition. Indoing so, they had no religious motivation. Therendition of the song was the Franz Biebl melody,not the familiar Franz Schubert melody which mightotherwise conjure up a sense of religious familiarity.Thus, the constitutional injury in Lee --- forcingparticipants to participate in a state-prescribedreligious exercise--- is entirely missing in this caseand the music and its selection, and manner ofperformance, could not be more disparate in terms ofconstitutional consequences. The fact that some
19
expression might have "religious connotations," i.e.,some suggestion of religious meaning (even ifaccurate in this case), does not translate intocoercing someone to participate in a "religiousexercise." The Superintendent’s arbitrary extensionof the law to stop the Wind Ensemble’s performance,in light of the boundaries established by Lee v.Weisman, is thus arbitrary and unreasonable, andcertainly not mandated by the EstablishmentClause.
Third, the Ninth Circuit panel’s captiveaudience justification also does not withstandanalysis under either Lee (for the reasons statedabove), or the Court’s other principal captiveaudience case, Lehman v. City of Shaker Heights,418 U.S. 298 (1974). That case involved "car card"advertising in a bus line run by the City in itsproprietary capacity. The court rejected aconstitutional challenge based on the captiveaudience theory finding that protections for speechin commercial venues had historically been lessrobust and more subject to regulation or restrictionthan other speech. More importantly, this Court hasrecognized the reality that "[t]he plain, if at timesdisquieting, truth is that in our pluralistic society,constantly proliferating new and ingenious forms ofexpression, ’we are inescapably captive audiences formany purposes.’ .... Much that we encounteroffends our esthetic, if not our political and moral,sensibilities. Nevertheless, the Constitution does notpermit government to decide which types ofotherwise protected speech are sufficiently offensiveto require protection for the unwilling listener or
2O
viewer." Erznoznik v. City of Jacksonville, 422 U.S.205, 210 (1975).
Fourth, the panel’s unreasonable conclusionthat "the demand for equal time is so great thatcomparable non-religious musical works might notbe presented" at graduation is wholly belied by therecord. Fully eight secular-oriented instrumentalworks were presented during the graduationprogram, six at the beginning and two for theprocessional and recessional. (ER 146, 225) Inaddition, two musical works were sung by classmembers, along with three student-deliveredspeeches. This panoply of "senior" speech fullymitigated any impact that an :instrumentalperformance of Biebl’s "Ave Maria" might have hadon the ceremony. Whitehead’s skewed interpretationof School policy (that otherwise permits religioussongs in a balanced environment) was unreasonablein light of the purpose of the forum and theremaining musical performances that occurred. Farfrom being seen for religious connotations, theperformance would, as Judge Smith recognized,advance the very purpose of the graduationceremony to "acknowledge the achievements of theJackson High students" and provide them with "theopportunity to express themselves through speechand music." (26a). Its censorship completelyundermined these purposes and was unreasonable inlight of those purposes.
In sum, Superintendent Whitehead’s decisionto censor amounted to pristine censorship of allreligious viewpoints and unreasonable on severalcounts. It was based on guesswork and an
21
undifferentiated fear of controversy. Theperformance did not require attendees to participatein a religious exercise because there was no religiousexercise. Accordingly, the audience was no more"captive" to the performance than it was in listeningto the other music (some with, and more without,lyrics) and numerous speeches at the event, whichsome may have considered equally offensive. Therewas no Establishment Clause violation. To thecontrary, Whitehead’s decision flew in the face ofestablished school policy that permitted religiously-inspired works to be performed when they could bebalanced with comparable non-religious musicalworks. Finally, Whitehead’s action was contrary tothe very purposes of the graduation ceremony inrecognizing student expression and achievementwithout viewpoint discrimination
So
Although school officials maintained Nurre’sgroup was censored based on "complaints" from the2005 graduation, they were able to substantiate onlyone complaint in the record, a letter to the localnewspaper (ER 287). The author of that letterexhibited an extreme notion of the requirements ofthe Establishment Clause, arguing that all religious"entertainment" must be excluded from governmentsupported venues or events. But as this Court andothers have pointed out, the Establishment Clause isnot violated by the display of art and othermemorials containing religious themes or images in
22
publicly-supported venues.7 Nor does governmentnecessarily violate the Establishment Clause bysimply facilitating the opportunity for individuals toparticipate in religious education, or by providingpublic school venues for religious :meetings oractivities, or adopting other programs that indirectlybenefit religion,s
In like manner, school officials do not have anabsolute and cavalier right to quash student speechsimply because of selective public dissatisfactionwith the expression. In Good News Club v. MilfordCent. School, 533 U.S. 98, 119 (2001), the schooldistrict argued that it prevented religiousorganizations from using school facilities because ofthe danger that children and other members of thepublic would view such access as an endorsement ofreligion. The Court refused to accept this "modifiedheckler’s veto" based on perceptions of certainmembers of the public. In Reno v. American Civil
7 See Lynch v. Donnelly, 465 U.S. 668, 683 (1984) ("displayof the creche is no more an advancement or endorsement ofreligion than the Congressional and Executive recognition ofthe origins of the Holiday itself as "Christ’s Mass," or theexhibition of literally hundreds of religious paintings ingovernmentally supported museums."); Van Orden v. Perry,545 U.S. 677 (2005); Doe v. Duncanville Indep. Sch. Dist., 70F.3d 402, 407 (5th Cir. 1995) ("the Establishment Clausedoes not prohibit.., choirs from singing religious songs aspart of a secular music program[.]").
8 See Widmar v.Vincent, 454 U.S. 263 (1981); Witters v.Svcs. for the Blind, 474 U.S. 481,489 (1986); Muller v. Allen,463 U. S. 388 (1983); Mergens v. Westside School District,496 U.S. 226 (1990); Lamb’s Chapel, supra; Good News Clubv. Milford Cent. School, 533 U.S. 98, 106 (2001); Zobrest v.Catalina Foothills School District, 509 U.S. 1 (1993).
23
Liberties Union, 521 U.So 844, 880 (1997), this Courtlikewise struck down a provision of theCommunications Decency Act which had the effect of"confer[ing] broad powers of censorship, in the formof a "heckler’s veto," upon any opponent of indecentspeech.
To silence patently unobjectionable,constitutionally-protected expression merely becauseof the possibility that extremists may consider itobjectionable is simply not reasonable. There mustbe "a specific showing of constitutionally validreasons to regulate [the] speech" in question, Tinker,supra, 393 U. S. at 510-11, or a showing "thatsubstantial privacy interests are being invaded in anessentially intolerable manner. Cohen v.California, 403 U.S. 15, 21 (1971). "A less stringentanalysis would permit a government to slight theFirst Amendment’s role ’in affording the publicaccess to information, discussion, debate, andenlightening ideas.’" Consolidated Edison Co. ofNew York, Inc. v. Public Service Commission of NewYork, 447 U.S. 530, 541 (1980) (quoting FirstNational Bank of Boston v. Bellotti, 435 U.S. 765,783 (1978)). A contest of letter writing campaignsto newspapers ought not dictate whether expressionis subject to censorship under our constitutionaljurisprudence.
Indeed, because of the absence of ademonstrable Establishment Clause violation, whichthe panel majority notably failed to find in this case(20a-21a), it is axiomatic that "the purported stateinterest asserted here--in achieving greaterseparation of church and State than is already
24
ensured under the Establishment Clause of theFederal Constitution--is limited by the Free ExerciseClause and in this case by the Free Speech Clause aswell." See Widmar v. Vincent, supra, ,154 U. S. at276. Undifferentiated fear of "religious connotations"does not create an Establishment Clause violation,nor does it permit arbitrary censorship of studentspeech.
Co
The Ninth Circuit’s determination that it isreasonable to bow to unreasonable views of a vocalfew puts it in direct conflict not only with theprinciples of Tinker, Rosenberger, Widmar and GoodNews, but also principles established and followed indecisions from other circuits. For example, inAmericans United for Separation of Church andState v. City of Grand Rapids, 980 F.2d 1538 (6th Cir.1992), the court rejected an Establishment Clausechallenge to the placement of a menorah in a publicpark to celebrate Chanukah. In applying theendorsement test, the court warned against thedanger that religious expression will be suppressedin response to those who look upon religion with a"jaundiced eye." Summing up this principle, thecourt wrote:
This case presents another challenge tothe right of free speech from those whodo not like the message at issue or themanner in which it is presented. Webelieve that the plaintiffs’ argumentpresents a new threat to religiousspeech in the concept of the
25
"Ignoramus’s Veto." The Ignoramus’sVeto lies in the hands of thosedetermined to see an endorsement ofreligion, even though a reasonableperson, and any minimally informedperson, knows that no endorsement isintended, or conveyed, by adherence tothe traditional public forum doctrine...
We refuse to rest importantconstitutional doctrines on suchunrealistic legal fictions.
Id. at 1553 (emphasis added).
Similarly, in Holloman ex rel. Holloman v.Harland, 370 F.3d 1252 (11th Cir. 2004), the courtrejected the claim of school officials that they werejustified in disciplining a student for engaging in ansymbolic protest during the classroom recitation ofthe Pledge of Allegiance because the student’sexpression disturbed other students. The court citedTinker for the principle that school officials may notjustify silencing expression on the basis that theexpression causes discomfort. The student’sexpression was not "removed from the realm ofconstitutional protection simply because [other]students cloaked their disagreement in the guise ofoffense or disgust. Holloman’s behavior was notdirected ’toward’ anyone or any group and could notbe construed by a reasonable person (including ahigh school student) as a personal offense or insult."Holloman, 370 F.3d at 1275.
26
II.
The signal sent by the Ninth Circuit’s rulingin this case will likely, as predicted in Judge Smith’sdissenting opinion, have a profound andunnecessarily adverse, potentially nationwide,impact upon student artistic expression. The panelmajority’s decision effectively instructs schooldistricts around the country that it is in their bestinterest to err on the side of censorship, not only insituations that actually violate the EstablishmentClause, but whenever school administratorsthemselves believe that the "religious connotations"might come into play "in light of [their] pastexperience and [their] understanding of the law."(21a). This grievously misguided message requirescorrection lest the culture be irreparablyimpoverished and innocent student expressionvanquished by a judicially-sanctioned tyranny of theintolerant ignoramus.
Without the guidance of this Court, there isevery reason to believe that school administratorsnationwide will conclude that the "reasonable", safercourse is simply to sacrifice student rights toexpression and the right to receive information, i.e.,exposure to art with religious themes or inspiration.From an administrator’s point of view, a blanket banon religious works is much easier to implement thana policy that carefully balances legitimateEstablishment Clause concerns with studentfreedoms in the particular situation. A blanket banmay be "reasonably perceived as an attempt to avoidconflict with the Establishment Clause," and thus beapproved by the courts. (18a). The Ninth Circuit
27
decision creates a perverse incentive foradministrators to take the safe route and avoidpotential liability by infringing student rights. Andbecause under the Ninth Circuit’s decisionadministrators need only act with the desire to avoidcontroversy, there is no substantial limitation onofficial censorship.9
The effect of such a blanket ban on artseducation would be dramatic. Major works that areobviously religiously inspired, such as Handel’sMessiah and Mozart’s Requiem, would be atimmediate risk for removal from the musiccurriculum. Other less obvious classical workswould also need to be avoided. Indeed, it may beimpossible to compile a complete catalog ofsignificant religiously inspired music. JohanSebastian Bach,1° Joseph Haydn,11 Ludwig van
9 Superintendent Whitehead attempts to hide behind the cloakof qualified immunity on grounds that there is no clearlyestablished law. However, once a school has opened up alimited forum, it "must respect the lawful boundaries it hasitself set." Rosenberger, 515 U.S. at 832; Good News Club,, 533U.S. at 109-10; see also Lamb’s Chapel, 508 U.S. at 393-94(1993). Moreover, not only is the case law on unlawfulviewpoint discrimination settled, one need only read thecontemporaneous e-mail from Choir Director Hunt sent toschool administrators pointing out the obvious censorship andFree Speech violation arising from their ban on religiously-inspired music and the unreasonableness of that ban. See HuntE-mail, 84a-86a.10 List of Bach’s Works,
http://j sbach.org/completecategory.html~ List of Haydn’s Works,http://www, classicalarchives.com/haydn.html
28
Beethoven,12 Franz Schubert,13 Felix Mendelssohn,14Johannes Brahms,15 and many others drew uponChristian themes for inspiration; Richard Wagnerborrowed from Norse mythology for his famousopera cycle Der Ring des Nibelungen~3; still othersfound inspiration in the divine pantheon worshippedby ancient Greeks and Romans. None are "entirelysecular," and all are therefore subject to censorshipby school officials under the Ninth Circuit’s rationalefor decision here.
More recent musical compositions are also atrisk. Indeed, as Judge Smith notes, even "currentpopular music comprises a significant number ofworks that, though originally inspired by religion,have since become largely secularized."(26a). Thepiece at issue in this case--Franz Biebl’s AveMaria--was composed in 1964.17 Students whoperform rock-and-roll or pop tunes are likely toencounter problems. The Beatles sang about"Mother Mary" in Let it Be. Stairway to Heaven byLed Zeppelin, The Prayer by Celine Dion, and Livin"
List of Beethoven’s Works,http://www.lvbeethoven.com/Oeuvres/ListOpus.html
List of Schubert’s Sacred Works,http://www.franzschubert.org.uk/works/sacred.html
List of Mendelssohn’s Sacred Works,http://www.classical.net/music/composer/works/mendelssohn/stage.php#sac
List of Brahms’ Works, http://w3.rz-erlin.mpg.de/cmp/brahms_works.htmlDer Ring des Nibelungen,
Franz Biebl Biography,http://www.classiccat.net/biebl_f/biography.htm
29
on a Prayer by Jon Bon Jovi all contain allusions toreligion in their titles. Survivor by Destiny’s Childcould be banned for the line "I’m not gonnacompromise my Christianity." Rufus Wainwright’sHallelujah, which uses stories of King David fromthe Hebrew Bible as an allegory for the pitfalls ofromance, would surely be rejected. References toChristianity are prominent in country music as well,as evidenced by Carrie Underwood’s number-one hitJesus Take the Wheel, Lee Greenwood’s God Blessthe U.S.A., and even The Charlie Daniels Band’s TheDevil Went Down to Georgia. The extent of potentialcensorship is tremendous and touches every musicalgenre from every time period.
Musical theater works are similarlythreatened. Many popular pieces for the stage liftedtheir plots from stories of the Bible; see, for example,Joseph and the Amazing Technicolor Dreamcoat andJesus Christ Superstar, both by seven-time Tonywinner Andrew Lloyd Webber, and Godspell by six-time Tony award nominee Stephen Schwartz. Otherworks, such as Jerry Brock and Sheldon Harnick’sFiddler on the Roof, are not based upon scripture butcould be stricken simply for their emphasis onreligious concepts and cultures. Fiddler on the Roofis the seventh most frequently performed musical inAmerican high schools,is And the performance ofRogers and Hammerstein’s Sound of Music might bebarred in light of the Roman Catholic context andreligious themes throughout the musical.
~8 Richard Zoglin, Bye Bye, Birdie. Hello, Rent, TIME, May
15, 2008, at 51.
3O
Nothing in the Ninth Circuit’s opinionindicates that its rationale is to be limited solely tothe musical context. The creep of precedents, inresponse to unrelenting assaults of’ disgruntledhecklers, may be expected to reach out to the visualarts or musical theatre works as well. Studentscould be deprived of the opportunity to study piecesof widely recognized artistic merit, such as Leonardoda Vinci’s famous The Last Supper, simply becausethey contain religious themes. Michelangelo’spaintings on the Sistine Chapel ceiling and hissculptures David and Pier& would also be candidatesfor removal. Even the slimmest connection toreligion is sufficient to justify censorship under thedecision below. Biebl’s Ave Maria was rejectedmerely because its title sounded religious to schooladministrators, even though the song itself had noreligious content since it was an unfamiliar pieceperformed without lyrics. (9a, n. 4). Sculptures likeGod, by Morton Schamberg, could meet a similarfate. Its title is clearly religiously inspired, which isenough to get it banned from schools, but the workactually depicts a twisted pipe on a wooden block.19
Similarly, Francis Bacon’s abstract series wouldprobably not have any religious implications for mostviewers, except for those who knew the title he gavethem: Three Studies for Figures at the Base of aCrucifixion .20
~9 Image available at
http://www.nga.gov/exhibitions/2006/dad~dartwork/von.shtm20 Image available at
A purely secular educational system, purgedof any reference to any religion, threatens to depriveAmerican youth of a rich and diverse culturalheritage. Art, music, literature, and history show uswhere we have come from and bring meaning to ourlives. As Judge Smith put it, "[t]he taking of suchunnecessary measures by school administrators willonly foster the increasingly sterile andhypersensitive way in which students may expressthemselves [...] and hasten the retrogression of ouryoung into Philistines, who have little or nounderstanding of our civic and cultural heritage."(emphasis added) (24a). The judiciary’s complicity inrestricting the range and diversity of voices inAmerican education cannot be ignored or minimized.By granting school administrators standardlesspower to censor anything with even the slightestconnection to religion, the Ninth Circuit’s decisionhas done a great disservice to public school studentsaround the country, restricting rights of freeexpression, jeopardizing academic freedom, andnarrowing tenets encouraging a broad-basededucation. Unless this Court intervenes, schooladministrators will have every legal incentive undersuch mistaken decisions to continue their reactionto controversy by purging altogether religiouslyinspired works of music, art, and literature frompublic education.
CONCLUSION
For the reasons stated above, this Courtshould grant certiorari in this case to provide much-needed guidance to government and school officials
32
who, at the expense of constitutionally-protectedexpression, choose to yield to hecklers seeking theextirpation of even trace allusions to religion atpublicly-supported events.
Respectfully submitted,
W. Theodore Vander WelCounsel of RecordVANDER WEL, JACOBSON,BISHOP & KIM, PLLC10500 NE 8th StreetSuite 1900Bellevue, Washington 98004(425) 462-7070Participating Attorney forTHE RUTHERFORD INSTITUTE
John W. WhiteheadDouglas R. McKusickThe Rutherford Institute1440 Sachem PlaceCharlottesville, VA 22901(434) 978-3888
James J. KnicelyKNICELY & ASSOCIATES, P.C.487 McLaws Circle, Suite 2Willliamsburg, Virginia 23185(757) 253-0026Counsel for the Petitioner
