NCAA tournament time brings talk of “good losses” — unexpectedly close games in which underrated teams prove their postseason-worthiness. Monday’s Supreme Court decision not to entertain a Washington high school student’s First Amendment claims in the case of Nurre v. Whitehead may go down in the recordbooks as a good loss for freedom of speech.
Yes, the censored student — who was forbidden by the superintendent of Henry M. Jackson High School in Snohomish County, Wash., from performing the hymn “Ave Maria” as part of a graduation concert — lost her case in the Ninth Circuit U.S. Court of Appeals. And yes, the Supreme Court’s decision means that the student’s case is over. The president of the Rutherford Institute, the conservative legal-aid organization that furnished student Kathryn Nurre’s legal representation, declared after Monday’s ruling: “Free speech in the public schools is on life support. With this decision, the Supreme Court may have pulled the plug. It’s a sad day for freedom in America.”
But is it?
Justice Samuel Alito, in a rare public break with his bretheren, wrote a forceful opinion dissenting from the Court’s refusal to entertain Nurre’s petition for review. In it, Justice Alito made plain that — when a school establishes a tradition of allowing students to make their own content decisions (in this case, by letting students choose the pieces to be performed at graduation) — the school may not lightly substitute its tastes for those of the students.
“[W]hen 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 engaging in personal expression when in fact the school administration is pulling the strings,” Justice Alito wrote.
And he went on: “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.”
It is unusual for a justice to issue a detailed dissent disputing the Court’s refusal to hear a case, and it is especially significant that this reproach came from Justice Alito. In the Court’s most recent foray into the realm of student First Amendment rights, Morse v. Frederick, Justice Alito authored a vigorous concurring opinion cautioning against blanket restrictions on speech that might offend the dainty sensibilities of every thin-skinned listener. He reinforces, and sharpens, that point in Nurre: “[O]ur cases categorically reject the proposition that speech may be censored simply because some in the audience may find that speech distasteful.”
The Court never publicly explains its rationale for rejecting a case. This refusal may be a product of the justices’ seemingly limitless surfeit of deference to school management decisions. Or it may be that neither the Court’s conservative nor liberal wings was confident enough of corralling a majority to risk taking the case and establishing an unwanted precedent. Whatever the rationale in this instance, it seems clear that in the future, school administrators will not be able to count on Justice Alito’s signature on the blank check of censorship authority.
That is of small comfort to Kathryn Nurre today. But it should be reassuring to the Kathryn Nurres of tomorrow.
(As an aside, the Ninth Circuit’s opinion — which now stands as the law in nine western states — is not all bad news for the student media. While the Nurre court did reject the student musician’s First Amendment claim, the authors of the majority opinion stated firmly that school censorship discretion has its limits. If the school were proven to be engaging in viewpoint discrimination — that is, censoring to suppress one side of a controversy — then the school would be violating the First Amendment, even in a venue that does not operate as an “open forum” for student expression. Some legal commentators and judges have speculated that the Supreme Court’s Hazelwood School District v. Kuhlmeier ruling opened the door for schools to purge controversial or disfavored ideas with impunity. The Nurre ruling quite clearly says otherwise.)