Law & Courts

Over Dissent, High Court Declines Review of ‘Ave Maria’ at Graduation

By Mark Walsh — March 22, 2010 3 min read
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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. But school 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 free-speech rights.

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 selections secular.

“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 cultural heritage.”

The student appealed the decision with the help of the Charlottesville, Va.,-based Rutherford Insitute, while the Everett School District urged the courtnot 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.

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A version of this news article first appeared in The School Law Blog.