Appeals Court won’t reconsider school’s US flag shirt ban

NOTE on an en banc hearing:

• In the ruling made last week, the 9th District Court of Appeals denied the students’ request for an en banc hearing.
• Cases in United States Courts of Appeals are heard by a three-judge panel.
• In law, an en banc session is a session where a case is heard before all the judges of a court – in other words, before the entire bench – rather than by a panel selected from them.
• En banc is often used for unusually complex cases or cases considered to be of greater importance.
• Appellate courts sometimes grant rehearing en banc to reconsider a decision of a panel of the court (generally consisting of only three judges) in which the case concerns a matter of exceptional public importance or the panel’s decision appears to conflict with a prior decision of the court.

These students and another friend were told to turn their American flag t-shirts inside out or go home after wearing them to their California high school on Cinco de Mayo day.

(by Howard Mintz, San Jose Mercury News) – Rejecting free speech arguments from parents, Republican lawmakers and conservative groups, a federal appeals court on Wednesday refused to reconsider a ruling that found a California public high school had the legal right to order students wearing American-flag adorned shirts to turn them inside out during a 2010 Cinco de Mayo celebration.

The 9th U.S. Circuit Court of Appeals let stand its February ruling in favor of Live Oak High School administrators, who argued that a history of problems on the Mexican holiday justified the decision to act against the American flag-wearing students. Officials at the Morgan Hill school ordered the students to either cover up the shirts or go home, citing past threats and campus strife between [Mexican and non-Mexican] students that raised fears of violence. [Read the February ruling Dariano v. Morgan Hill Unified School District at: cdn.ca9.uscourts.gov/datastore/opinions/2014/02/27/11-17858.pdf]

Lawyers for the parents, backed by 20 Republican members of Congress, had asked the 9th Circuit to rehear the case with a special 11-judge panel. Three of the 9th Circuit Court of Appeals judges dissented [against the majority decision to deny the request], saying they disagreed with both the court’s ruling in the case and its decision to not grant a new hearing. [The students had asked for an en banc hearing–read note above for explanation.]

William Becker, the parents’ lawyer, called the decision “outrageous” and vowed to take the case to the Supreme Court. “(We) will not allow the politically correct judiciary to insult our flag,” he said.

At the time of the incident, the legal flap drew nationwide attention to the parents’ First Amendment argument that no circumstances warrant a school forbidding a student from wearing a shirt with the American flag. The parents have told this newspaper the students were only showing their patriotism and did not intend to incite trouble with Latino students on Cinco de Mayo.

The 9th Circuit decision relied heavily on the U.S. Supreme Court’s 1969 precedent on when schools can cite safety concerns to justify taking action that might violate student free-speech rights. The Supreme Court would have to revisit that precedent if the justices decide to hear the Live Oak case.

9th Circuit Judge Diarmuid O’Scannlain, who wrote Wednesday’s dissent, may have provided fodder for conservatives on the Supreme Court to consider the case, calling February’s ruling “regrettable.”

He warned that the decision opened the door for schools to stifle speech for any threat, saying, “The demands of bullies will become school policy.”

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