Nurre v. Whitehead

MILAN D. SMITH, JR., Circuit Judge,

dissenting in part, but concurring in the judgment:

I write separately because I disagree with the majority’s conclusion that banning the playing of an instrumental version of the musical number Ave Maria at the Jackson High School graduation ceremony was a reasonable restraint on freedom of expression. I would hold that, in prohibiting Nurre and her classmates from playing them selected piece of music, the School District misjudged the Establishment Clause’s requirements and, in so doing, violated Nurre’s First Amendment rights.1 I am concerned that, if the…