Why Alito wanted to take ‘Ave Maria’ case

Tuesday, March 23, 2010

WASHINGTON — The Supreme Court yesterday declined to review a
lower court decision that banned the performance of a religious instrumental
piece by a public high school musical group in Washington state.

Justice Samuel Alito Jr. dissented from the Court's denial of review,
reflecting his continuing concern over censorship of speech in schools. The
Court’s action came in the case of Nurre v. Whitehead.

A high school wind ensemble in Everett, Wash., chose to perform “Ave Maria”
at graduation ceremonies in 2006. But school officials vetoed the plan,
explaining that the piece’s title, which would be printed in the program, was
“religious in nature” — even though, as an instrumental piece, it contained no
religious words. Those attending a graduation are a “captive audience,” school
officials said, noting also that the year before, some graduation attendees had
complained about a school choir piece that referred to God and angels.

Kathryn Nurre, a senior member of the ensemble, 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 school officials’

The appeals panel ruled 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 worried that upholding the school’s action
would encourage banning speech simply out of fear that some in the audience
might object.

The Rutherford Institute, which helped Nurre in petitioning the high court,
reacted strongly to the justices’ decision to deny review in the case. “Free
speech in the public schools is on life support,” said John Whitehead, president
of the institute. “With this decision, the Supreme Court may have pulled the
plug. It’s a sad day for freedom in America.”

Usually, the Supreme Court’s denial of a petition is announced without
explanation or dissent. But Alito wrote a dissent, voicing concerns about the
suppression of student expression.

“When 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 puppetmasters who create the illusion that
students are engaging in personal expression when in fact the school
administration is pulling the strings.”

Alito added that Supreme Court 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?”

Alito has objected to excessive school censorship before. In the 2007 case
v. Frederick,
Alito joined the majority in ruling that a public school
could ban a banner with the message “Bong Hits 4 Jesus” because of its drug
connotations. But Alito wrote a separate concurrence to state that he, at least,
did not want to expand the power of school officials to restrict speech beyond
existing precedents.

“When public school authorities regulate student speech, they act as agents
of the state,” Alito wrote in the 2007 case. Because of the threat to student
safety posed by drug use, Alito said restricting pro-drug speech was
permissible. But, he added, “I regard such regulation as standing at the far
reaches of what the First Amendment permits.”