Nurre v. Whitehead

2010-03-22

Headline: Denial leaves Ninth Circuit ruling in place that allowed a public school to block students’ chosen instrumental piece with religious connotations at graduation, potentially permitting similar bans on religiously themed performances.

Holding: The Supreme Court denied review, leaving the Ninth Circuit's decision intact that a public school did not violate students' free speech rights when it vetoed an instrumental piece due to its perceived religious connotations at graduation.

Real World Impact:

Allows some schools to ban student musical selections with religious connotations at graduation
Could extend to other student artistic performances and speeches at school events
Affects nearly 10 million public school students in the Ninth Circuit

Topics: student speech, religion in schools, graduation ceremonies, school music programs, free speech

Summary

Background

Kathryn Nurre, a high school senior and member of her school wind ensemble, helped select Franz Biebl’s instrumental "Ave Maria" to play at graduation. School officials vetoed the selection because they said the title and meaning had religious connotations, instructing principals that graduation music should be purely secular. The ensemble instead performed a different, secular piece. Nurre sued the superintendent claiming her free speech rights were violated. The District Court ruled for the superintendent, and a divided Ninth Circuit panel affirmed that ruling.

Reasoning

The core question was whether a school violated students’ free speech when it banned an instrumental piece perceived as religious at a graduation event. The Ninth Circuit treated instrumental performance as speech and assumed the school had created a space for student expression, but held the ban reasonable given a "captive" graduation audience and limited time for equal alternatives. Justice Alito, dissenting from the Supreme Court’s denial of review, argued this reasoning conflicts with long-standing free speech protections and amounts to viewpoint discrimination against religious expression.

Real world impact

Because the Supreme Court denied review, the Ninth Circuit decision stands and continues to guide schools in that circuit. The ruling may make it easier for some school officials to exclude musical or other student expressions that have religious connotations at graduations and similar events. The denial was not a Supreme Court decision on the merits, so the constitutional question could be revisited in a future case.

Dissents or concurrances

Justice Alito dissented from the denial, saying he would have granted review because the Ninth Circuit’s rule risks broad censorship of student speech and affects nearly ten million public school students in that circuit.