The high court on Monday refused to hear an appeal from Kathryn Nurre, a former student at Henry M. Jackson High School. Nurre, who was a senior in 2006, wanted to play "Ave Maria" - Hail Mary in Latin - with the band's wind ensemble at the graduation.
Administrators raised red flags at the Everett, Wash., school when they heard about the idea from the wind ensemble seniors, who had played Franz Biebl's uptempo 1964 rendering of "Ave Maria" without controversy at a winter concert.
A year before, choral performance of the song "Up Above My Head" at the 2005 commencement drew complaints and protest letters to the town's newspaper. Therefore, school officials said the seniors could not play the song since the title alone identified "Ave Maria" as religious and that graduation should be strictly secular.
Nurre sued, claiming unspecified damages from infringement of First Amendment rights. The federal courts threw out the lawsuit, with judges saying it was reasonable for a school official to prohibit the performance of an obviously religious piece.
The court's majority turned away her request for appeal without comment. But Justice Samuel Alito said he would have heard her case.
There are nearly 10 million students under the jurisdiction of the 9th U.S. Circuit Court of Appeals, Alito said. The decision by the San Francisco-based appeals court could lead to censorship of other forms of student expression outside of music, like student speeches and other school events.
"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 because of the importance of the event for the participating students," Alito said. "A decision with such potentially broad and troubling implications merits our review."
The case is Nurre v. Whitehead, 09-671.
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