Legal battle continues for LOHS American flag T-shirt flap

The nonprofit Judeo-Christian law firm American Freedom Law Center’s legal quest to prove that Live Oak High School administrators violated the Constitutional rights of their students on the 2010 Cinco de Mayo has reached another level of judicial review.
The group filed a petition March 12 requesting a full court, en banc review with the Ninth Circuit Court of Appeals. 
An 11-judge panel is scheduled to review three-judge panel’s decision to uphold a federal 2011 judge’s ruling affirming that school officials acted accordingly when they ordered three former LOHS students to remove their American patriotic T-shirts on the Cinco de Mayo Mexican holiday.
If the en banc review upholds the previous rulings, Attorney William J. Becker vowed to take the case to the U.S. Supreme Court. He represents the families of the three former Live Oak students.
“It’s pretty incredible that the First Amendment rights of students to express their patriotic views has to take the backseat to the rights of students who want to celebrate another nation,” Becker said.
The petition drafted by AFLC Co-Founder and Senior Counsel Robert J. Muise argued the case before the three-judge panel in San Francisco contending that the panel’s decision “overlooked material points of fact and law” and impermissibly incorporates a “heckler’s veto” into the First Amendment, contrary to established precedent.
“It is never appropriate to ban an American flag on a public high school campus in America,” Muise said. “Moreover, not only is the panel’s decision wrong as a matter of Supreme Court precedent, the decision affirms a dangerous lesson by rewarding student resort to disruption rather than reason as the default means of resolving disputes. The school district’s proper response should be to educate the audience rather than silence the speaker.”
Cinco de Mayo is a celebration to commemorate the Mexican army’s unlikely victory over French forces at the Battle of Puebla on May 5, 1862. In Mexico, it is only celebrated by people in the state of Pueblo. In the United States, it is a day to celebrate Mexican heritage and pride.
But in 2010, the celebration turned ugly on the LOHS campus when Mexican students said they felt disrespected by four Caucasian classmates wearing patriotic American T-shirts. They were sent home after refusing to remove the shirts or turn them inside out. Former LOHS principal Nick Boden and former assistant principal Miguel Rodriguez – neither currently with the district – said they were concerned about the potential for violence on campus. Neither the fourth student, Austin Carvalho or his parents joined the suit.
MHUSD Superintendent Steve Betando was not with the district at that time, but he provided a statement on the district website immediately following the three-judge panel’s ruling.
“We believe the Ninth Circuit correctly determined the administrators must be afforded reasonable leeway to make difficult decisions when necessary to protect student safety, even where such decisions impact student speech,” Betando wrote.
“The district has always maintained that the decisions made by its administrators on that day had nothing to do with favoring one group over another but rather stemmed from a motivation to protect the safety of the student-plaintiffs and the other 1,100 students on the Live Oak campus.”
Betando’s predecessor, Former Superintendent Wes Smith, said he agreed. 
“I applaud the Ninth Circuit Court of Appeals for unanimously holding that school administrators can intervene to ensure student safety before students are physically harmed,” Smith said.