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

Daily News Article   —   Posted on September 22, 2014

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.

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(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.

[In 2010, students at Live Oak High School in Morgan Hill, Calif. were asked by the school’s vice principal on Cinco de Mayo (May 5)  to remove American flag bandannas and to turn their American flag T-shirts inside out, saying the shirts were “incendiary.” The boys were told that if they refused to do so and returned to class, they would be suspended. Instead, they chose to leave school and go home for the day.  “They said we could wear it on any other day,” one of the boys, Daniel Galli said Wednesday, “but (Cinco de Mayo) is sensitive to Mexican-Americans because it’s supposed to be their holiday so we were not allowed to wear it today.”]

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.

[In February] a unanimous three-judge panel had found that the school’s actions were reasonable given the safety concerns, which outweighed the students’ First Amendment claims. “Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence,” the judges ruled.

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.”

Reprinted here for educational purposes only. May not be reproduced on other websites without permission from San Jose Mercury News. Visit the website at mercurynews .com.

Background

THE U.S. COURT SYSTEM:  There are two separate court systems in America. The federal court system deals with issues of law relating to those powers expressly or implicitly granted to it by the U.S. Constitution, while the state court systems deal with issues of law relating to those matters that the U.S. Constitution did not give to the federal government or explicitly deny to the states.  (from uscourts.gov)

from BensGuide.gpo.gov:

• Most cases do not start in the Supreme Court. Usually cases are first brought in front of lower (state or federal) courts. Each disputing party is made up of a petitioner and a respondent.
• Once the lower court makes a decisions, if the losing party does not think that justice was served, s/he may appeal the case, or bring it to a higher court. In the state court system, these higher courts are called appellate courts. In the federal court system, the lower courts are called United States District Courts and the higher courts are called United States Courts of Appeals.
• If the higher court’s ruling disagrees with the lower court’s ruling, the original decision is overturned. If the higher court’s ruling agrees with the lower court’s decision, then the losing party may ask that the case be taken to the Supreme Court. But … only cases involving federal or Constitutional law are brought to the highest court in the land [the Supreme Court].

THE FEDERAL COURT SYSTEM:
(from usgovinfo.about.com/od/uscourtsystem/a/fedcourts.htm)

The Supreme Court
Created in Article III of the Constitution, the Chief Justice and eight associate justices of the Supreme Court hear and decide cases involving important questions about the interpretation and fair application of the Constitution and federal law. Cases typically come to the Supreme Court as appeals to decisions of lower federal and state courts.

The Courts of Appeals
Each of the 12 regional circuits has one U.S. court of Appeals that hears appeals to decisions of the district courts located within its circuit and appeals to decisions of federal regulatory agencies. The Court of Appeals for the Federal Circuit has nationwide jurisdiction and hears specialized cases like patent and international trade cases.
For a Circuit Court of Appeals map, go to uscourts.gov/court_locator.aspx.

The District Courts
Considered the trial courts of the federal judicial system, the 94 district courts, located within the 12 regional circuits, hear practically all cases involving federal civil and criminal laws. Decisions of the district courts are typically appealed to the district’s court of appeals.

The Bankruptcy Courts
The federal courts have jurisdiction over all bankruptcy cases. Bankruptcy cannot be filed in state courts. The primary purposes of the law of bankruptcy are: (1) to give an honest debtor a “fresh start” in life by relieving the debtor of most debts, and (2) to repay creditors in an orderly manner to the extent that the debtor has property available for payment.

Special Courts
Two special courts have nationwide jurisdiction over special types of cases:

• U.S. Court of International Trade – hears cases involving U.S. trade with foreign countries and customs issues
• U.S. Court of Federal Claims – considers claims for monetary damages made against the U.S. government, federal contract disputes and disputed “takings” or claiming of land by the federal government

Other special courts include:

• Court of Appeals for Veterans’ Claims
• U.S. Court of Appeals for the Armed Forces