When a controversial decision of the U.S. Court of Appeals for the 9th Circuit is appealed to the Supreme Court, the justices often take the bait and reverse. But this morning, the Supreme Court denied review of a 9th Circuit ruling that nixed the performance of a religious instrumental piece by a public high school band in Washington state. Justice Samuel Alito Jr. dissented from the Court's denial of review.
A high school band in Everett, Washington chose to perform "Ave Maria" at graduation ceremonies, but school officials vetoed the plan, explaining that the piece's title alone had religious connotations, even though, as an instrumental piece, it contained no religious words. The officials noted that the year before, graduation attendees had complained about a school choir piece that referred to God and angels. Kathryn Nurre, a senior, challenged the officials' action as a violation of her freedom of speech. Both the district court for the western district of Washington and the 9th Circuit upheld the officials' actions.
The 9th circuit ruling said that "it is reasonable for a school official to prohibit the performance of an obviously religious piece” especially “when there is a captive audience at a graduation ceremony, which spans a finite amount of time, and during which the demand for equal time is so great that comparable non-religious musical works might not be presented.” Judges Robert Beezer and Richard Tallman joined in the ruling, and Judge Milan Smith dissented in part. Smith voiced concern that upholding the school's action would encourage banning speech simply out of fear that some in the audience might object.
Alito voiced concerns about the suppression of student expression. "School administrators may not behave like puppetmasters who create the illusion that students are engaging in personal expression when in fact the school administration is pulling the strings," Alito wrote. He added that the Supreme Court's precedents bar censorship of student speech just because it is religious or "because some in the audience may find that speech distasteful." Alito called the school's action a form of viewpoint discrimination that the Court has not permitted.
"The decision below will have important implications for the nearly 10 million public school students in the Ninth Circuit," Alito added. "Why, for example, should the Ninth Circuit’s reasoning apply only to musical performances and not to other forms of student expression, including student speeches at graduation ceremonies and other comparable school events?"
Footnote: Curiously, the text of Alito's dissent available at the end of this document persistently misspells the word "superintendent" as "superintendant," though it is correctly spelled in the caption of the case, which refers to superintendent Carol Whitehead.