Nurre v. Whitehead , 176 L. Ed. 2d 399 ( 2010 )

Cite as: 559 U. S. ____ (2010) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
KATHRYN NURRE v. CAROL WHITEHEAD, INDIVIDU-
ALLY AND IN HER OFFICIAL CAPACITY AS THE SUPER-
INTENDENT OF EVERETT SCHOOL
DISTRICT NO. 2
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 09–671. Decided March 22, 2010
The petition for a writ of certiorari is denied.
JUSTICE ALITO, dissenting from denial of certiorari.
The Ninth Circuit’s decision in this case is not easy to
square with our free speech jurisprudence. For this reason
and because of the decision’s important practical implica­
tions, I would grant the petition for a writ of certiorari.
I
At the time of the events at issue, petitioner, Kathryn
Nurre, was a high school senior and a member of her
school’s wind ensemble. In keeping with a school tradi­
tion, the school’s band director told the seniors in the
ensemble that they could select a piece from their musical
repertoire to be performed during their graduation cere­
mony. The 2006 graduates, including petitioner, chose
Franz Biebl’s “Ave Maria,”1 a piece that they had previ­
——————
1 Many composers, including Schubert, Gounod, Verdi, Mozart, Elgar,
Saint-Saëns, Rossini, Brahms, Stravinsky, Bruckner, and Rachman­
inoff, composed music for the Ave Maria. See 22 The New Grove
Dictionary of Music and Musicians 670, 718 (2d ed. 2001) (Schubert); 10
id., at 215, 233 (Gounod); 26 id., at 462 (Verdi); 17 id., at 319 (Mozart);
8 id., at 131 (Elgar); 22 id., at 130 (Saint-Saëns); 21 id., at 763 (Ros­
sini); 4 id., at 208 (Brahms); 24 id., at 560 (Stravinsky); 4 id., at 480
(Bruckner). See also R. Threlfall & G. Norris, A Catalogue of the
Compositions of S. Rachmaninoff 119 (1982). Some of these composi­
tions are well known, but Biebl’s, which was brought to the United
States in 1970 by the Cornell University Glee Club, see M. Slon, Songs
2 NURRE v. WHITEHEAD
ALITO, J., dissenting
ously performed and that “they believed showcased their
talent and the culmination of their instrumental work.”
580 F. 3d 1087, 1091 (CA9 2009). At the prior year’s
graduation ceremony, the student choir had performed
“ ‘Up Above My Head,’ a vocal piece which included ex­
press references to ‘God,’ ‘heaven,’ and ‘angels,’ ” and the
school district claimed that this had resulted in “com­
plaints from graduation attendees” and at least one angry
letter to the editor of a local newspaper. Ibid.; id., at 1101(M. Smith, J., dissenting in part and concurring in judg­
ment) (quoting lyrics); see also Brief in Opposition 7, and
n. 28. Fearful that the performance of Biebl’s “Ave Maria”
would cause a similar reaction, even though the perform­
ance would not include the lyrics of the piece, school dis­
trict officials vetoed the ensemble members’ choice “be­
cause the title and meaning of the piece had religious
connotations—and would be easily identified as such by
attendees merely by the title alone.” 580 F. 3d, at 1091.
The associate superintendent sent an e-mail to all the
principals in the district instructing them that “musical
selections for all graduations within the District should be
purely secular in nature.”2 Ibid. As a result of the dis­
——————
from the Hill: A History of the Cornell University Glee Club 174 (1998),
is relatively obscure.
2It is not clear that this e-mail accurately reflected either the dis­
trict’s past or then-current practice. According to the brief in opposi­
tion, the district approved the piece that the wind ensemble played at
graduation prior to 2006, “ ‘On a Hymnsong of Philip Bliss.’ ” See Brief
in Opposition 8; see also 580 F. 3d, at 1091. This song, which not only
includes the term “hymn” in its title, is an arrangement of Philip Bliss’
hymn “It is Well with My Soul” that has fervently religious lyrics,
including the following:
“Though Satan should buffet, though trials should come,
Let this blest assurance control,
That Christ hath regarded my helpless estate,
And hath shed His own blood for my soul.”
Spafford and Bliss, It is Well with My Soul, in Gospel Hymns No. 2, p.
78 (P. Bliss & I. Sankey 1876); D. Holsinger, On a Hymnsong of Philip Bliss
Cite as: 559 U. S. ____ (2010) 3
ALITO, J., dissenting
trict’s decision, the members of the wind ensemble “reluc­
tantly elected to perform the fourth movement of Gustav
Holst’s ‘Second Suite in F for Military Band.’ ” Ibid.Petitioner then brought this action against the school
superintendent in her official and individual capacities,
claiming, among other things, that the district’s decision
had violated her right to freedom of speech. The District
Court granted summary judgment for the superintendent,
and a divided panel of the Ninth Circuit affirmed. 580
F. 3d 1087. The majority acknowledged that the perform­
ance of “an entirely instrumental” musical piece “is speech
as contemplated by the First Amendment,” and assumed,
as the school district had conceded, that the school had
created a “ ‘limited public forum’ ” when it allowed the
members of the wind ensemble to choose the piece that
they wished to play. Id., at 1093–1094. Nevertheless, the
majority held that the vetoing of the ensemble members’
selection had not violated their free speech rights because
“it is reasonable for a school official to prohibit the per­
formance of an obviously religious piece” “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 musi­
cal works might not be presented.” Id., at 1095. Dissent­
ing on the free speech issue, Judge Smith expressed con­
cern that the panel’s decision would encourage public
school administrators to ban “musical and artistic presen­
tations by their students in school-sponsored limited
public fora where those presentations contain any trace of
religious inspiration, for fear of criticism by a member of
the public, however extreme that person’s views may be.”
Id., at 1099.
——————
(1989), http://trnmusic.com/pdfs/scorepdfs/onahymnsongofphilipbliss.pdf (as
visited Mar. 19, 2010, and available in Clerk of Court’s case file); see
also R. Garofalo, On a Hymnsong of Philip Bliss: A Teaching/Learning
Unit 9 (2000). Whatever distinction the district perceived between this
piece and Biebl’s “Ave Maria” is not revealed by the record.
4 NURRE v. WHITEHEAD
ALITO, J., dissenting
II
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. Pleasant Grove City v.
Summum, 555 U. S., ___ , ___ (2009) (slip op., at 4–5). 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 puppet
masters who create the illusion that students are engag­
ing in personal expression when in fact the school admini­
stration is pulling the strings.
Our cases use the term “limited public forum” to de­
scribe a situation in which a public school purports to
allow students to express their own views or sentiments.
See Rosenberger v. Rector and Visitors of Univ. of Va., 515
U. S. 819, 829–830 (1995); Widmar v. Vincent, 454 U. S.
263, 272–273 (1981); see also Perry Ed. Assn. v. Perry
Local Educators’ Assn., 460 U. S. 37, 45–48 (1983). In
such a forum, we have held, the State “must not discrimi­
nate against speech on the basis of viewpoint.” Good News
Club v. Milford Central School, 533 U. S. 98, 106 (2001);
see also Rosenberger, supra, at 829. Our cases also make
it perfectly clear that discrimination against religious, as
opposed to secular, expression is viewpoint discrimination.
Good News Club, supra, at 107; Rosenberger, supra, at
830, 831; Lamb’s Chapel v. Center Moriches Union Free
School Dist., 508 U. S. 384, 393–394 (1993). And our cases
categorically reject the proposition that speech may be
censored simply because some in the audience may find
that speech distasteful. See United States v. Playboy
Entertainment Group, Inc., 529 U. S. 803, 814–816 (2000);
R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992); Board of Ed.,
Island Trees Union Free School Dist. No. 26 v. Pico, 457
U. S. 853, 871–872 (1982) (plurality opinion); Tinker v. Des
Moines Independent Community School Dist., 393 U. S.
Cite as: 559 U. S. ____ (2010) 5
ALITO, J., dissenting
503, 508–509 (1969).
In this case, however, the Court of Appeals held that a
public school did not violate the free speech rights of a
student when the school, after creating a limited public
forum, banned the performance of “an obviously religious
piece” because the piece might offend some members of the
“captive audience at a graduation ceremony.” 580 F. 3d,
at 1095. The tension between this reasoning and the
fundamental free speech principles noted above is unmis­
takable.
The Court of Appeals, in a footnote, acknowledged that
the district’s decision would have been impermissible if it
had constituted viewpoint discrimination, 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 view­
point” but instead “sought only to ‘play a pretty piece.’ ”
Id., at 1095, n. 6. This reasoning is questionable at best.
First, the Court of Appeals’ holding, as set out in the
body of its opinion, does not appear to depend in any way
on petitioner’s motivation in helping to select the Biebl
piece. The Court phrased its holding as follows: “[T]he
District’s action in keeping all musical performances at
graduation ‘entirely secular’ in nature was reasonable in
light of the circumstances surrounding a high school
graduation.” Id., at 1095. Nothing in the body of the
court’s opinion suggests that its decision would have come
out the other way if petitioner had favored the Biebl piece
for religious rather than artistic reasons. Second, the
school district did not veto the Biebl piece on viewpoint­
neutral grounds. On the contrary, the district banned that
piece precisely because of its perceived religious mes­
sage—that is, because the district feared that members of
the audience would view the performance of the piece as
the district’s sponsorship of a religious message. See Pet.
for Cert. 7 (quoting letter to the editor criticizing 2005
6 NURRE v. WHITEHEAD
ALITO, J., dissenting
graduation program). Banning speech because of the view
that the speech is likely to be perceived as expressing
seems to me to constitute viewpoint discrimination.
The decision below will have important implications for
the nearly 10 million public school students in the Ninth
Circuit. Even if the decision is read narrowly, it will
restrict what is purportedly personal student expression
at public school graduation ceremonies. And as Judge
Smith noted, the Ninth Circuit’s reasoning may be applied
to almost all public school artistic performances. 580
F. 3d, at 1099 (opinion dissenting in part and concurring
in judgment). The audience at such events, which gener­
ally consists overwhelmingly of relatives and friends of the
performers, may be regarded as no less “captive” than
graduation attendees. 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.” Id., at 1095, 1091(majority opinion).
The logic of the Ninth Circuit’s decision has even
broader implications. 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? Moreover, unless discrimina­
tion against speech expressing a religious viewpoint is less
objectionable than other forms of viewpoint discrimina­
tion, the Ninth Circuit’s decision may provide the basis for
wide-ranging censorship of student speech that expresses
controversial ideas. A reasonable reading of the Ninth
Circuit’s decision is that it authorizes school administra­
tors 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.