Yesterday, Justice Alito issued a fairly rare dissent over the Supreme Court's refusal to hear a case involving religious instrumental music at graduation. A high school in Everett, Washington – which typically allows student music groups to choose the music they will perform at graduation – denied the wind ensemble's request to play a setting of "Ave Maria", citing concerns of appearing to endorse religion.
The 9th Circuit Court of Appeals ruled against a student's lawsuit challenging this decision, and yesterday's Supreme Court decision leaves in place that determination that the school is within its rights to limit the performance of religious music at official school functions.
In his dissent (pdf), Alito argues that allowing students to choose, but then reviewing their expression at school events may open the door to unconstitutional viewpoint discrimination.
When a public school administration speaks for itself and takes public responsibility for its speech, it may say what it wishes without violating the First Amendment’s guarantee of freedom of speech. But when a public school purports to allow students to express themselves, it must respect the students’ free speech rights. 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.
…
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. A decision with such potentially broad and troubling implications merits our review.
Under his argument, though, how could a school review the content of graduation speeches, for example, to assure that the official school ceremony does not include improper proselytizing, or offensive hate speech? A case like that would seem to bring his concerns into even clearer view. And yet the Supreme Court has consistently declined to hear student challenges on that front.
The Seattle Times report is here. San Francisco coverage is here.
