The U.S. Supreme Court declined on Monday - without any explanation - to take up a free speech case that was sparked over boys wearing American flag T-shirts on Cinco de Mayo at a Morgan Hill high school five years ago.
The justices met Friday behind closed doors to decide whether to hear the case: Dariano vs. Morgan Hill Unified School District, which a federal appeals court in San Francisco refused to reconsider in September 2014. But a decision to not take the case was quietly posted Monday.
"It's unjust, it's discretionary, it's politicized," Robert Joseph Muise, the plaintiff's lead counsel for the conservative American Freedom Law Center, told NBC Bay Area Monday morning. "The 9th circuit set a horrible precedent. Why? I don't know and they won't tell me."
But San Francisco-based Gordon and Rees LLP attorney Don Willenburg, lead counsel for the school district, said he was happy the previous court ruling was left standing because student violence is a "particularly salient concern in an era of rampant school violence."
The decision not to take the case means the February 2014 decision made in San Francisco by the 9th U.S. Circuit Court of Appeals stands. That court also let stand a lower court ruling in favor of Live Oak High School Principal Nick Boden and Vice Principal Miguel Rodriguez, who asked a group of boys to change or hide their red-white-and-blue clothes and T-shirts by turning them inside out out of concern about violence that might break out on Cinco de Mayo in 2010, at a school where 40 percent of the student body was Latino. The May 5 holiday commemorates the Mexican army's unlikely victory over French forces.
The administrators worried that the blatant American flag symbols on a day honoring Mexican pride would instigate violence on campus. And Willenberg said threats of "physical fights" over the shirts had been made on that day.
The boys, their parents, attorneys and conservative talk show hosts, argued, however, that they had every right to wear what they wanted - especially red, white and blue.
But the two sets of judges noted that Live Oak High School documented at least 30 fights on campus during a six-year span between gangs and "between Caucasian and Hispanic" students and that administrators had good reason to tell the boys not to wear the T-shirts on a Mexican holiday, court documents state. One of those fights occurred a year before the day in question, when mostly white students hung an American flag on campus, chanted "USA," and cussed at Mexican students, the judges noted.
Both Boden and Rodriguez are no longer at the school. The boys who wore the shirts - Daniel Galli, Austin Carvalho, Matthew Dariano and Dominic Maciel - have all graduated.
But William J. Becker Jr., the boys' parents' lawyer, who is the president and CEO of Freedom X, a group that protects "conservative and religious freedom of expression," vowed to appeal the decision - and he did, bringing it all the way to the highest court in the country.
Becker's side was represented by the American Freedom Law Center in Michigan. The conservative Alliance Defending Freedom in Georgia, and The Claremont Institute's Center for Constitutional Jurisprudence in Orange, Calif. signed on to the case in support of the boys' families. They had argued the T-shirts represented freedom of expression.
The case at the time drew national attention where many of of the boys were asked for interviews on conservative talk shows and Fox News. And the interest in the story still hasn't died down completely. In May 2014, a small group of Tea Party patriots picketed in front of the high school with American flags, who were arguing in support of the "restoration of American values and ideas."
As a preemptive strike before the protest, the school released a three-minute video asking students to be proud of their heritage without "beating on other people's opinions."