Watch the Piano

Yesterday the Supreme Court denied certiorari in Nurre v. Whitehead, a case about speech by high school students.  Alito dissented.  The Ninth Circuit had held that it was not improper for a high school to bar playing an 'Ave Maria" as part of a graduation performance.  The school claimed that the religious nature of the music was inappropriate for an event like a graduation.  The student involved thought that she should be allowed to play the piece, which was an instrumental piece (and so no recitation involved).  In dissent, Alito argued that the decision below was inconsistent with existing First Amendment law concerning high school students.  The graduation ceremony was more like a recital or play rather than an event with a compelled audience, and that the music was not religious in any interesting way.  The dissent is on the eloquent side for Alito.  But it has no mention of Bong-Hits-4-Jesus, in which Alito thought it fine for a school to punish students for speech outside of school at an event not sponsored or associated with the school, or the line of cases in which the Court has permitted school districts to prohibit shirts, armbands, pins, and other non-disruptive political speech.  In fact, the decision in Nurre is consistent with the ongoing evisceration of Tinker which Alito has participated in.