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.

[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:]

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.


NOTE: Read the “Background” and “Resources” below before answering the questions.

1. The first paragraph of a news article should answer the questions who, what, where and when. List the who, what, where and when of this news item. (NOTE: The remainder of a news article provides details on the why and/or how.)

2. How did Live Oak High School administrators justify their decision to demand the American flag-wearing students turn their shirts inside out or go home?

3. What did the students ask the appeals court to consider after they initially lost their case in February?

4. How had the court ruled on the case in February?

5. How had the students’ parents’ defended their position when they filed the lawsuit? On what grounds did they base their case?

6. a) How many appeals court judges dissented from the majority ruling? What did they say in their dissent?
CHALLENGE: The few articles found on this latest decision did not mention how many judges ruled in the majority. What is the number of judges who ruled for the school district? Where did you find the answer?

7. In a column he wrote for USA Today on March 3, 2014, George Washington University law professor Jonathan Turley noted:

What is most disturbing about last week’s decision [the original February 2014 decision] is that the court entirely misses the distinction between speech and conduct. When presented with threats of violence, the school should punish those who engage in harassing or violent acts. Indeed, the court described an earlier confrontation when some students raised an American flag on Cinco de Mayo and “one Mexican student shouted ‘f*** them white boys. … Let’s f*** them up.'” One would have thought that those who made threats would face action from the school administration. Removing any display of the flag in the face of violence is akin to removing gay students to avoid harassment or girls to avoid sexual assaults.

Our high schools should be training future citizens to live within a pluralistic society. Instead, Live Oak High is teaching students that it is the speech, not those who threaten the speakers, that is the problem. Citizens shaped in such an environment are likely to view speech as a discretionary privilege allowed by our government rather than an individual right guaranteed in our Constitution.

Ironically, the flag is the very symbol of a nation of differing faiths, cultures and races bound by liberty. Perhaps the school was right: If you are going to deny free speech, it is the last thing you want to see.

Do you agree with Mr. Turley’s assertions? Explain your answer.

8. Do you think the students should appeal to the U.S. Supreme Court? Explain your answer.


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


  • 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 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

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


Read the 2010 news report:

Read the original February 2014 appeals court ruling in Dariano v. Morgan Hill Unified School District at:

Read the ruling, amended on Sept. 17, 2014 denying the students’ appeal for a hearing by an 11 judge panel (called an en banc

Three of the 9th Circuit Court of Appeals judges dissented (did not agree with) the majority decision to deny the students a special 11 judge hearing.  Read their dissent in PDF format at:

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