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Justices Won’t Hear Case|on Graduation Hymn Ban

(CN) - The Supreme Court on Monday refused to disturb a 9th Circuit ruling backing a public high school's decision to bar a student from playing "Ave Maria" at graduation. Justice Samuel Alito argued that the high court should have taken the case, because the ruling "is not easy to square with our free speech jurisprudence."

Administrators at Washington's Everett School District No. 2 told Kathryn Nurre that she couldn't play an instrumental version of the hymn at the 2006 Henry M. Jackson High School graduation, because it might be seen as an endorsement of religion.

Officials said they banned all religious music at graduation after receiving several complaints the previous year, when a high-school principal in the same district allowed students to sing "Up Above My Head," a choir piece referring to God, heaven and angels.

School officials rejected Nurre's proposed performance of "Ave Maria," which means "Hail Mary" in Latin, and told her to pick another song.

The 9th Circuit panel voted 2-1 to uphold a federal judge's ruling for superintendent Dr. Carol Whitehead, but explained that its decision was narrow.

"[W]e confine our analysis to the narrow conclusion that 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, it is reasonable for a school official to prohibit the performance of an obviously religious piece," Judge Richard Tallman wrote for the majority.

Dissenting from the panel decision, Judge Milan Smith Jr. pointed out that "religious pieces form the backbone of the musical arts." Smith expressed concern that the majority's ruling would "chill or even kill" musical and artistic presentations that "contain any trace of religious inspiration."

Justice Alito noted that all 9th Circuit judges, even those in the majority, recognized that the graduation ceremony was a "limited public forum."

"In such a forum, we have held, the State 'must not discriminate against speech on the basis of viewpoint,'" Alito wrote, quoting the high court's decision in Good News Club v. Milford Central School (2001).

"Our cases also make it perfectly clear that discrimination against religious, as opposed to secular, expression is viewpoint discrimination. And our cases categorically reject the proposition that speech may be censored simply because some in the audience may find that speech distasteful."

But this type of censorship is exactly what the 9th Circuit allowed, Alito said.

"The tension between this reasoning and the fundamental free speech principles ... is unmistakable," he wrote.

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