Religion and religious expression have been objects of censorship in the public schools for quite some time. However, the intolerance of anything related to religion has taken a turn for the absurd in recent years.

A ruling by the U.S. Court of Appeals for the Ninth Circuit in Nurre v. Whitehead, which affirms the right of school administrators to censor material that has the remotest connection to religion, illustrates exactly how outlandish things have become.

Traditionally, the senior members of the woodwind ensemble, the top performing instrumental group at Henry M. Jackson High School in Snohomish County, Wash., select a piece each year to perform during graduation ceremonies. Having performed Franz Biebl’s “Ave Maria” at a public concert in 2004, the seniors in the wind ensemble unanimously chose to perform it again at their graduation ceremony on June 17, 2006, because they felt its aesthetic beauty and peacefulness would be appropriate for the tone of the ceremony.

As Kathryn Nurre, a member of the ensemble, explained, “It’s the kind of piece that can make your graduation memorable because we actually learned to play it really well. And we wanted to play something that we enjoyed playing.”

The student musicians proposed to perform Biebl’s piece instrumentally: no lyrics or words would be sung or said, nor did the senior members intend that any lyrics would be printed in ceremony programs or otherwise distributed to members of the audience. However, despite the absence of lyrics, the school superintendent, Carol Whitehead, refused to allow the ensemble to perform “Ave Maria” at their graduation ceremony because she believed the piece to be religious in nature.

Ironically, the superintendent reportedly didn’t even know that the words “Ave Maria” are Latin for “Hail Mary.” Nevertheless, determined to avoid offense, despite the fact that this Biebl version of “Ave Maria” is not one that most people would even recognize, the superintendent banned it.

Believing that school authorities had violated her right of free speech, Nurre turned to The Rutherford Institute, which filed a First Amendment law suit against the school in federal district court in June 2006. A year later, a federal district court ruled that the school’s actions were “reasonable” in trying to avoid offending anyone.

In a 2-1 ruling that was handed down in September 2009, the Ninth Circuit Court of Appeals concurred. According to the court, school authorities can deny students’ rights to free speech just to keep some of those attending graduation from being offended.

However, in a dissent that is notable for its lucidity, Judge Milan D. Smith insisted that Nurre’s right to free speech had been unreasonably violated. “[I]n prohibiting Nurre and her classmates from playing their selected piece of music, the School District misjudged the Establishment Clause’s requirements and, in so doing, violated Nurre’s First Amendment rights,” observed Smith.

In an attempt to avoid offending anyone, America’s public schools have increasingly adopted a zero tolerance attitude toward religious expression. The courts have not helped, allowing schools the discretion to let an offended minority control a cowed majority.

What school officials and the courts fail to understand is that by sanitizing the schools of anything remotely related to religion, they are not only silencing an entire segment of the population, but they are also contributing to a cultural wasteland bereft of a rich heritage of Western art, music and literature — all of which, at one time or another, has been greatly influenced by religion.

Some of Western civilization’s greatest music was inspired by religion or created for a religious purpose, composed by such maestros as J.S. Bach, Wolfgang Mozart and Joseph Haydn. Even contemporary artists could find their music banned in schools under such a rubric. For example, the Beatles are visited by Mother Mary in “Let it Be”; Led Zeppelin writes of a “Stairway to Heaven”; and even Jon Bon Jovi sings about “Livin’ on a Prayer.” Such a course of action would reduce American culture and arts education to a sterile wasteland.

This brings us back to the Ninth Circuit’s ruling in Nurre. We are witnessing the emergence of an unstated yet court-sanctioned right, one that makes no appearance in the Constitution and yet seems to trump the First Amendment at every turn: the right to not be offended.

Each time we allow political correctness to triumph over our constitutional freedoms and basic common sense, we are complicit in undermining the freedoms on which this nation was built. And, in a case such as that of Nurre v. Whitehead, we will destroy our culture as well.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at Information about The Rutherford Institute is available at

Leave a comment

Your email address will not be published. Required fields are marked *