U.S. Supreme Court Justice Samuel Alito voiced his dissent Monday after his colleagues refused to hear an appeal from a former high school senior who was prevented from playing an instrumental version of "Ave Maria" at her graduation.
In a six-page opinion, Alito said the high court's decision to deny Kathyrn Nurre's petition for writ of certiorari will have important implications for the nearly ten million public school students in the Ninth Circuit as it will restrict what is purportedly personal student expression at public school graduation ceremonies.
"If the decision is applied to such performances, school administrators in some communities may choose to avoid 'controversy' by banishing all musical pieces with 'religious connotations,'" Alito wrote, referring to the Ninth Circuit Court of Appeals' decision last year.
In its ruling, the appeals court had sided with Nurre's high school, saying that the free speech rights of the 2006 graduate and members of her school's wind ensemble had not been violated when the school vetoed their decision to perform Franz Biebl's "Ave Maria" because "it is reasonable for a school official to prohibit the performance of an obviously religious piece."
At the prior year's graduation ceremony, the student choir of Henry M. Jackson High School in Mill Creek, Wash., had performed "Up Above My Head," a vocal piece that included explicit references to "God," "heaven," and "angels," and the school district claimed that this had resulted in complaints from graduation attendees and at least one angry letter to the editor of a local newspaper.
Fearful that the performance of Biebl's "Ave Maria" would cause a similar reaction – even though the performance would not include the lyrics of the piece – school district officials vetoed the ensemble members' choice, stating that "the title and meaning of the piece had religious connotations - and would be easily identified as such by attendees merely by the title alone."
After noting this, Alito said the district's ban of the piece constitutes viewpoint discrimination because it was a response to the piece's perceived religious message.
"And our cases categorically reject the proposition that speech may be censored simply because some in the audience may find that speech distasteful," Alito argued.
Even the Court of Appeals, in a footnote, had acknowledged that the district's decision would have been impermissible if it had constituted viewpoint discrimination, the justice pointed out. But the court concluded that "this is not a case involving viewpoint discrimination" because petitioner "concede[d] that she was not attempting to express any specific religious viewpoint" but instead "sought only to 'play a pretty piece.'"
"This reasoning is questionable at best," Alito proposed.
That said, the high court justice made clear his opinion that a decision "with such potentially broad and troubling implications" merits the review of the Supreme Court.
"[W]hen a public school purports to allow students to express themselves, it must respect the students' free speech rights," Alito wrote.
"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," he added.
In place of "Ave Maria," the members of the 2006 wind ensemble at Jackson High School performed the fourth movement of Gustav Holst's "Second Suite in F for Military Band" during their graduation ceremony in June.
That same month, Nurre filed a First Amendment law suit against the school in a federal district court.