Court upholds ban on [Christian] hymn at Wash. Graduation

[usregimechange]

SEATTLE (AP) -- 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.

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.

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Before: Robert R. Beezer, Richard C. Tallman, and
Milan D. Smith, Jr., Circuit Judges.

Majority:
Beezer, Robert R. - Nominated by Ronald Reagan on March 2, 1984.
Tallman, Richard C. - Nominated by William J. Clinton on October 20, 1999.

Dissenting in part and Concurring in part:
Smith, Milan Dale Jr. - Nominated by George W. Bush on February 14, 2006.

http://www.ca9.uscourts.gov/datastore/opinions/2009/09/08/07-35867.pdf