FREE SPEECH — The U.S. Supreme Courtagainst a strong dissent by Justice Samuel Alitohas let stand a decision upholding the right of high school officials to bar a student chamber music group from playing "Ave Maria" during their graduation ceremony, reports Mark Walsh in Education Week. Instead, the students reluctantly opted to perform the fourth movement of Gustav Holsts Second Suite in F for Military Band.
Over a strong dissent by
one justice, the U.S. Supreme Court today declined to hear an appeal
over whether a school district's refusal to allow a performance of "Ave
Maria" at a public high school graduation was an infringement of student
free speech rights.
"[W]hen a public school purports to allow students to express
themselves, it must respect the students' free speech rights," Justice
Samuel A. Alito Jr. wrote in
dissenting from the court's decision not to hear the appeal in Nurre
v. Whitehead (Case No. 09-671).
"School administrators may not
behave like puppet masters who create the illusion that students are
engaging in personal expression when in fact the school administration
is pulling the strings."
The case involved student Kathryn Nurre, who along with other members
of a wind ensemble sought to perform an instrumental version of "Ave
Maria," which translates to "Hail Mary," at the 2006 graduation ceremony
of Henry M. Jackson High School in Everett, Wash.
administrators, who had received complaints about a musical selection
with religious references at a 2005 graduation, told Nurre and the wind
ensemble to select a secular piece of music, which they reluctantly did.
Nurre sued the superintendent of the Everett school district,
alleging that the decision censored her speech in violation of the First
Amendment's free-speech clause, showed hostility towards religion in
violation of the First Amendment's establishment clause, and violated
her equal-protection rights.
A federal district court held that the student's rights were not
violated. In a
September decision, a three-judge panel of the U.S. Court of
Appeals for the 9th Circuit, in San Francisco, upheld the district
court. The judgment was unanimous, although one member of the panel
wrote a partial dissent, saying the district violated Nurre's
The appeals court majority said such cases on religious expression
were always difficult for schools, and it was not ruling that religious
music could never be played in public schools.
But because a graduation
ceremony is considered an obligatory event for the high school seniors,
district officials acted reasonably in seeking to keep the musical
"Here, the district was acting to avoid a repeat of [previous]
controversy by prohibiting any reference to religion at its graduation
ceremonies," Judge Richard C. Tallman wrote for the 9th Circuit
majority. "District administrators recognized the evident religious
nature of 'Ave Maria' and took into consideration the compulsory nature
of a graduation ceremony."
Judge Milan D. Smith Jr., in his partial dissent, said the ruling
could lead public schools to eliminate music "with any trace of
religious inspiration" from its programs.
"The taking of such unnecessary measures by school administrators,"
Judge Smith said, "will only foster the increasingly sterile and
hypersensitive way in which students may express themselves in such
fora, and hasten the retrogression of our young into a nation of
Philistines, who have little or no understanding of our civic and
The student appealed
the decision with the help of the Charlottesville, Va.,-based
Rutherford Insitute, while the Everett School District urged
the court not to take up the case.
In his dissent from the denial of review today, Justice Alito also
expressed concern that the ruling below "will have important
implications for the nearly 10 million public school students in the 9th
Circuit," which covers Alaska, Arizona, California, Hawaii, Idaho,
Montana, Nevada, Oregon, and Washington state.
The 9th Circuit court's logic could apply to "almost all public
school artistic performances," Justice Alito wrote.
"School administrators in some communities may choose to avoid
'controversy' by banishing all musical pieces with 'religious
connotations,'" he wrote.
"A reasonable reading of the Ninth Circuit's decision is that it
authorizes school administrators to ban any controversial student
expression at any school event attended by parents and others who feel
obligated to be present because of the importance of the event for the
participating students," Justice Alito wrote. "A decision with such
potentially broad and troubling implications merits our review."
Such dissents from denial of review are sometimes viewed as
invitations for parties in similar disputes to take their cases to the
Supreme Court. Because controversies over student religious expression
at graduation ceremonies have been relatively frequent, the court will
likely have further opportunities to take up this issue.