updated 9/8/2009 7:48:53 PM ET 2009-09-08T23:48:53

Barring an instrumental performance of a Christian hymn at a high school graduation did not violate students' First Amendment rights and was within the school superintendent's discretion, a divided federal appeals panel ruled Tuesday.

The 9th U.S. Circuit Court of Appeals' decision in what Judge Richard C. Tallman described as "the legal labyrinth of a student's First Amendment rights" will be appealed to the Supreme Court, a lawyer said.

The case arose a year after a choral performance of the song "Up Above My Head" at the 2005 commencement for Henry M. Jackson High School in Everett, 25 miles north of Seattle. The song, with references to God, angels and heaven, drew complaints and protest letters to The Herald, the town's daily newspaper.

Red flags raised
Administrators raised red flags when wind ensemble seniors, who had played Franz Biebl's uptempo 1964 rendering of "Ave Maria" without controversy at a winter concert, proposed a reprise at their graduation in 2006.

School officials said the title alone identified "Ave Maria" — Hail Mary in Latin — as religious and that graduation should be strictly secular.

One of the students, Kathryn Nurre, sued Everett Public Schools Superintendent Carol Whitehead, claiming unspecified damages from infringement of First Amendment rights, but U.S. District Judge Robert T. Lasnik in Seattle rejected that assertion in a summary judgment on Sept. 20, 2007.

Tallman and a second judge from the San Francisco-based appeals court, Robert R. Beezer, agreed with Lasnik across the board.

"When there is a captive audience at a graduation ceremony ... during which the demand for equal time is so great that comparable nonreligious works might not be presented, it is reasonable for a school official to prohibit the performance of an obviously religious piece," Tallman wrote.

The third member of the panel, Judge Milan D. Smith Jr., concurred with the outcome. He agreed that the action was within the superintendent's discretion but argued that the students' First Amendment rights had been violated.

"If the majority's reasoning on this issue becomes widely adopted, the practical effect will be for public school administrators to chill — or even kill — musical and artistic presentations by their students ... when those presentations contain any trace of religious inspiration" in a school setting, Smith wrote.

"Such unnecessary measures by school administrators will only foster the increasingly sterile and hypersensitive way in which students may express themselves ... and hasten the retrogression of our young into a nation of Philistines who have little or no understanding of our civic and cultural heritage," he added.

‘Delighted’ by the ruling
Michael A. Patterson, a lawyer for the superintendent, said he was "delighted" by the ruling.

"We have always thought that she acted at all times with qualified immunity and that she did the right thing," Patterson said.

John W. Whitehead, a lawyer who has been involved in the case against the school district from the start, said he would appeal to the Supreme Court to determine "how far schools can go in eradicating any kind of religious influence."

Compared with better known, more stately versions of "Ave Maria" dating from the Renaissance period, Biebl's rendering is "totally unrecognizable," said Whitehead, who is not related to the superintendent and is president and founder of the Rutherford Institute, a conservative legal aid group. "You can't sing along with it."

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