The Jackson High School Wind Ensemble performs during graduation each year. Subject to school approval, ensemble students, who play in the Ensemble as part of a for-credit class, choose a song to present at the commencement ceremony. School administrators rejected students’ decision to play an arrangement of Ave Maria at the 2006 graduation because of the song’s religious nature. Represented by the Rutherford Institute, senior Kathryn Nurre filed a lawsuit against the school district, contending that the school had violated her free-speech rights and had acted with hostility toward and bias against religion in violation of the Establishment Clause. The United States District Court for the Western District of Washington disagreed, ruling that the school’s prohibition against the performance of Ave Maria was "based on a decision to keep religion out of graduation as a whole, not to discriminate against a specific religious sect or creed." Nurre appealed to the U.S. Court of Appeals for the Ninth Circuit. Our amicus brief, filed in March 2008, argued that the Ensemble’s performance is quintessential government speech because the school retained control over the content of the entire graduation ceremony and the Ensemble’s performance. The brief explained that the school bore ultimate responsibility for the programming at the graduation ceremony not only legally, but also in the court of public opinion — and the school was thus entitled and required to restrict religious presentations. The Ninth Circuit heard oral argument on January 22, 2009. On September 8, 2009, the Ninth Circuit ruled in favor of the school, although its rationale differed from the one we had advanced in our brief. The Court assumed that the Ensemble’s performance was private (rather than government) speech, and was thus entitled to some free-speech protection. But the Court concluded that the school’s prohibition against the performance of Ave Maria, as part of its effort to keep all musical performances at graduation entirely secular, was reasonable — and therefore constitutional — in light of the facts that attendance at graduation was mandatory and that there might not have been time at graduation to perform nonreligious musical works as well. On December 7, 2009, Nurre petitioned the U.S. Supreme Court to review the case.
The Supreme Court denied the petition on March 22, 2010, thus concluding the case.