“[W]hen a public school purports to allow students to express themselves, it must respect the students’ free speech rights,” Justice Alito said in an opinion this week. His words came in a powerful dissent to the Supreme Court’s decision not to hear a case involving students’ musical choice for the graduation ceremony. Justice Alito, the conservative judge who took his seat on the Supreme Court in 2006, may seem to be an unlikely advocate for student speech. However, this is not the first time he has argued for freedom of expression for public school students.
Monday’s dissent came after the Court refused to review a decision by the Ninth Circuit Court of Appeals that upheld a school district’s decision not to allow a high school wind ensemble to play Ave Maria (without the lyrics) at the school’s graduation ceremony. The wind ensemble had chosen the piece because they believed it would showcase their instrumental talent, but the school thought the piece would upset attendees “because the title and meaning of the piece had religious connotations.” The Ninth Circuit held that the school’s action had not violated the free speech rights of the students because “it is reasonable for a school official to prohibit the performance of an obviously religious piece . . . when there is a captive audience at a graduation ceremony, which spans a finite amount of time.”
Alito strongly disagreed and would have opted to hear the case. However, he was outvoted by the other justices and so the Ninth Circuit ruling will stand. In his passionate dissent, Alito argued that the ceremony was a limited public forum and as such the school officials are not permitted to discriminate against speech on the basis of viewpoint. School officials “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,” Alito stated.
It seems clear from his dissent that Alito would have likely reversed the Ninth Circuit decision by ruling that the school’s action was unconstitutional. However, in another student speech case that was before the Supreme Court in 2007, Alito upheld a school’s action that infringed on student speech rights. In Morse v. Frederick, the Supreme Court held that a school could ban a banner that read “Bong Hits 4 Jesus” at a school sponsored event because of its drug connotation. The Court asserted that because of the special threat of illegal drugs, school officials could censor the speech.
Although he concurred with the majority’s decision, Alito made clear that he believed that banning speech advocating illegal drug use was at the “far reaches of what the First Amendment permits.” He strongly asserted that the Court’s opinion should not be read as permitting school officials to restrict any speech that they deem contrary to their educational mission. Alito made clear that he did not believe the power of school officials – acting as agents of the state – to censor speech should be extended beyond existing precedents.
Alito’s objections to school censorship seem to carry through his opinions. Although he took exception with speech involving drugs, he has repeatedly argued against restricting student expression beyond what is already prohibited. At a point in time when student speech is continually under attack, it is important for all of us to remain vigilant of attempts to further silence student voices.