In Mill Creek, Wash., there is a high school named after Scoop Jackson, the late senator and Cold War hero. Mill Creek is just outside Everett, which was the senator’s hometown. And, in 2006, something curious happened at Jackson High — something that helps us know where we stand in American life.
The school had had a little tradition: Every year, the wind ensemble would choose a piece to play at graduation. In the previous three years, the group had picked On a Hymnsong of Philip Bliss, by David Holsinger. It is based on “It Is Well with My Soul.” But in 2006, the group wanted to play a different piece, something they had played on a winter concert and loved: the Ave Maria of Franz Biebl. The 17 members of the group voted unanimously for the piece. And their music director duly put it on a list of pieces proposed for graduation, a list sent to the school principal.
He looked it over, and the words “Ave Maria” raised a red flag for him. He kicked the matter upstairs, where it eventually reached Carol Whitehead, superintendent of the Everett School District No. 2. The words raised a red flag for her, too. She later admitted she did not know what they meant, but she knew they related to religion — and that was enough for her to forbid the wind ensemble to play the piece. Winter concerts were one thing, graduation ceremonies another. She would not have Everett-area schools “endorsing” religion.
Mind you, the wind ensemble was not going to sing any words. They were wind players. They were just going to play the music, the notes. But that was still not allowed: The title of the piece, “Ave Maria,” would have to be printed in the graduation program. And that was impermissible.
A student who played alto sax in the ensemble, Kathryn Nurre, sued. She claimed that her constitutional rights had been violated. Assisting her is the Rutherford Institute, a civil-liberties outfit based in Charlottesville, Va. Its president, John Whitehead — no relation to the superintendent — says this is the most extreme case he has ever seen. This is the end of the line, in a way: “It’s gotten so weird — I don’t know how to explain it. It goes very deep.” If a school will not permit an instrumental version of an Ave Maria at graduation, hostility to religion is official and pretty much complete. And what, asks John Whitehead, will that do to culture at large? Leaving aside Bach, Michelangelo, and Tolstoy: What about “Stairway to Heaven”?
You can understand why the Everett school officials would have been nervous. In 2005 — the year before the wind ensemble wanted to play Biebl’s Ave Maria — a Jackson High chorus had sung a song at graduation: “Up Above My Head.” The song makes reference to angels, heaven, and even God. This was too much for some in the audience, who complained to the school district and wrote letters to the Everett Herald. Therefore, school officials were on the alert: and something called “Ave Maria” was a no-go.
After Kathryn Nurre launched her suit, some letters were published in the Seattle Times. One lady wrote to “applaud” Superintendent Whitehead “for correctly insisting the wind ensemble play a more secular piece for commencement.” Thinking of a different Ave Maria, no doubt, she continued, “That melody is very familiar to all of us, and when we hear the instruments play, the words are immediately heard in our brains.” Now we are in the vicinity of thought-crime: We may not be singing about God, and we may not be hearing words about God, but the notes make us think of God, which is verboten at graduation.
The letter-writer went on to say, “If secular people of all stripes, whether atheist, agnostic, skeptic or freethinker, don’t speak out about these abuses . . . we will be no better than the Islamic jihadists.” She ended with a direct message to the student plaintiff: “Sorry, Kathryn Nurre, the majority doesn’t always win in a true Democracy. You attend a tax-supported high school.”
That is a near-perfect expression of “liberal” opinion in the United States today. And it is mean, ignorant, and illiberal.
The Ave Maria our letter-writer was thinking of was probably Schubert’s — or the one Gounod fashioned out of a keyboard prelude by Bach. Franz Biebl’s is less known. But, frankly, it is one of the most beautiful pieces of the 20th century. Biebl was a German who lived from 1906 to 2001. He wrote his Ave Maria in 1964, when a choir of firemen in Munich asked him to do so. (That was a different world.) It caught on in the United States mainly because Chanticleer, the a cappella group in San Francisco, made it a signature. Audiences are reluctant to let them end a concert without it.
Editorializing about the Nurre case, the newspaper in Tacoma asked, “Can music be religious without words?” Sure, in a way. You would be hard pressed to hear a Bruckner symphony without noticing the religious sensibility infusing it. Bruckner dedicated his final symphony to “my dear God.” Bach was, is, equally God-soaked. At the end of many of his manuscripts, he placed the initials “S.D.G.,” meaning, “Soli Deo Gloria,” or “To God Alone the Glory.” If you take religion out of music, or religious music out of the general repertoire, you will be left with a diet that is hardly worth eating.
In September 2007, the federal district court in Seattle ruled in Nurre v. Whitehead: against the student, for the superintendent and the schools. The case went to the Ninth Circuit Court of Appeals: where, in September 2009, a three-judge panel ruled as the district court had. The votes were 2 against 1. Nurre and her supporters are hoping that the Supreme Court will hear the case and rebuke the lower courts, giving clear guidelines.
Nurre is suing on three grounds: that Whitehead violated her free-speech rights, as granted in the First Amendment; that she acted hostilely toward religion, in violation of the First Amendment’s Establishment Clause; and that she ran afoul of the Equal Protection Clause as given in the Fourteenth Amendment — previously, as you know, the Jackson High School wind ensemble had been allowed to play On a Hymnsong of Philip Bliss. Was the Class of 2006’s desire so different?
Writing for the Ninth Circuit majority was Judge Richard C. Tallman. His is a thoughtful opinion, decently respectful of Nurre, religion, and music. Toward the end of it, he wrote, “We . . . wish to make clear that we do not hold that the performance of music, even ‘Ave Maria,’ would necessarily violate the Establishment Clause. We hold only that Whitehead’s actions were reasonable in light of her past experience and her understanding of the law and did not violate Nurre’s constitutional rights.”
But Judge Milan D. Smith’s dissent has won conservative hearts around the country. His was a partial dissent, finding that Superintendent Whitehead did, in fact, violate Nurre’s free-speech rights. He wrote that “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.” “The Hallelujah Chorus” would be out, of course — but also “The Battle Hymn of the Republic” and “When the Saints Go Marching In.”
Will the Supreme Court take the same view as Smith, if that court hears Nurre v. Whitehead? The Ninth Circuit is a court overturned with reassuring frequency. Remember, these are the people who brought us the banning, for a time, of the Pledge of Allegiance, because of “under God.”
But, whatever happens to Nurre v. Whitehead, we have reached a pretty pass when a school superintendent thinks she must ban an instrumental version of an Ave Maria on constitutional grounds. If she would rather avoid complaints from offended cranks, fine (sort of). And many of us are sympathetic to local control of education. But to say that an instrumental Ave Maria would violate the Bill of Rights? In acting as she did, Carol Whitehead herself might have been the violator.
We have reached a pass where, if we hear the word “God,” or even “angels” and “heaven,” we say, “Eek, a mouse!” American life has always been soaked in religion, from the Pilgrims to Abraham Lincoln to Martin Luther King and beyond. If American life, including graduation ceremonies, is purged of religion, American life is something new and twisted. Given the importance of religion to man in general, it is barely life itself.
The problem with Biebl’s Ave Maria, in its wind-ensemble version, was the title alone. If the kids had told the principal that it was called “Against the Despoliation of the Environment,” or “Ode to President Obama,” that would have been fine, you can bet. No one in the audience would have been guilty of thought-crime. Many composers draw inspiration from God and religion when they put pen to paper, no matter what their titles. Should they tell Carol Whitehead when they have received such inspiration, just in case? Would she permit that Bach prelude — the one Gounod added to — alone, without words?
I know a singer who was asked to sing at a ceremony for a Christmas-tree lighting in a major American city — only they did not call it a “Christmas tree,” of course: It was a “holiday tree.” The singer was asked to sing “O Christmas Tree” and “Silent Night”: but those in charge did not want her to sing them in English; she had to sing them in German, for fewer people would know that language — and words like “Christmas tree” and “Virgin” would not ring out over ears in the public square. We have reached a pretty pass, yes — in reality, a most unpretty pass.












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