In an amended opinion and order, the Ninth Circuit has declined a request for a rehearing en banc in Dariano v. Morgan Hill Unified School District. Judge Diarmuid O'Scannlain and two other judges wrote a dissent to the denial for an en banc rehearing.
Here's a refresher: On May 5, 2010 (Cinco de Mayo), a group of students wore T-shirts with American flags on them to Live Oak High School in Morgan Hill, California. The shirts appeared to be designed to inflame Mexican-American students at the school; there was a history of tension between white and Hispanic students. The students wearing T-shirts went home that day rather than turn their shirts inside-out as instructed by school officials; after they left, they received threats from other students.