Court OKs barring religious tunes at graduation U.S. COURT OF APPEALS

A divided federal appeals court on Tuesday upheld a school district's refusal to let a band play a religious piece at a high school graduation, saying the superintendent had reasonably decided to avoid a constitutional controversy by ordering a secular program.

The district's veto of an instrumental version of "Ave Maria" by German composer Franz Biebl at the 2006 graduation ceremony in Everett, Wash., did not violate students' freedom of speech or religion, said the Ninth U.S. Circuit Court of Appeals in San Francisco.

The court said it wasn't necessarily forbidding religious music at graduation - unlike prayers, which the U.S. Supreme Court has barred at high school commencements as an unconstitutional endorsement of religion. But the appeals court said it was reasonable for school officials, concerned about an appearance of religious favoritism, to "prohibit the playing of an obviously religious piece."

Dissenting Judge Milan Smith said the district had violated students' freedom of expression and predicted such actions would "hasten the retrogression of our young into a nation of Philistines, who have little or no understanding of our civic and cultural heritage." Religious music, he said, is the backbone of Western classical composition and expresses a secular, artistic message.

The case arose a year after the choir at Jackson High School sang a religious piece at graduation, with the principal's approval, prompting complaints from some students and residents. When members of the school's woodwind ensemble proposed playing "Ave Maria" at the 2006 ceremony, the principal referred the issue to the district superintendent, Carol Whitehead, who decided that all graduation music should be secular.

Whitehead was sued by Kathryn Nurre, a graduating senior and alto saxophone player, who accused the superintendent of censoring her musical expression and acting with hostility toward religion.

Upholding a judge's dismissal of the suit, the appeals court said graduation is unlike other school events at which musical programs commonly include religious works. Graduation takes place before a "captive audience," the court said, and the time is too short to guarantee a balanced program, unlike concerts, which can mix religious and secular pieces.

"The district had a legitimate interest in avoiding what it believed could cause confrontation with the Establishment Clause," the constitutional ban on government sponsorship or endorsement of religion, Judge Richard Tallman said in the majority opinion.

Nurre's lawyer, W. Theodore Vander Wel, said his client may appeal the ruling.

"School officials decided to censor this song because of its content," he said.

Barry Lynn, executive director of Americans United for Separation of Church and State, said the court had properly allowed the district to decide how to protect the rights of all students.

The ruling can be viewed at links.sfgate. com/ZICU.