NSBA submits amicus brief in case on religious music at graduation
NSBA, joined by the American Association of School Administrators and the state school boards associations of Arizona, California, Idaho, Montana, and Oregon, has submitted an amicus curiae brief to the U.S. Court of Appeals for the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, GU, MP) in the case of Nurre v. Whitehead, No. 05-7-35867. A member of the Henry A. Jackson High School (JHS) wind ensemble sued the superintendent of Everett Public Schools in the state of Washington after the group was prohibited from playing an instrumental composition by Franz Biebl, “Ave Maria,” at a JHS graduation ceremony. Complaints and negative publicity over the performance of a spiritual song at an earlier graduation had prompted district officials to direct that all future graduation performances be strictly secular. The lawsuit alleged that this violated student rights under the Free Speech, Establishment, and Equal Protection Clauses. The U.S. district court, in a decision below, granted the school district’s motion for summary judgment.
NSBA and its fellow amici ask the Ninth Circuit to affirm the district court’s judgment. The brief presents four main arguments. First, the intersection of Free Speech and Establishment Clauses in public schools has been problematic for courts and attorneys, let alone for school officials, and the law on the question presented by this case is less than clear. Second, the threat of litigation, including in situations like that presented by this case, has negative impacts on education, on educators, and on the children they serve. Third, this case epitomizes the need to preserve the “play in the joints” between competing constitutional provisions, in this case the Free Speech and the Establishment Clauses. Finally, these realities all combine to make this the quintessential case in which school administrators are entitled to qualified immunity from lawsuits.
U.S. District Court opinion in Nurre v. Whitehead
NSBA et al. amicus brief