The Volokh Conspiracy
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Teacher Can Proceed With First Amendment Lawsuit Over Threatened Punishment for Wearing MAGA Hat to Training
A defendant had argued that she could allow Black Lives Matters posters but forbid MAGA hats on the theory that, "While the Black Lives Matter poster is a symbol of cultural acceptance and inclusivity ... Mr. Dodge's MAGA hat is a symbol commonly associated with white supremacy and other anti-immigrant sentiments." No, says a Ninth Circuit panel.
From Dodge v. Evergreen School Dist. #114, decided today by the Ninth Circuit (Judge Danielle Forrest, joined by Judge Michael Daly Hawkins and Court of International Trade Judge Jane Restani):
The question in this case is whether the First Amendment was violated when a principal told a teacher he could not bring his Make America Great Again (MAGA) hat with him to teacher-only trainings on threat of disciplinary action and when the school board affirmed the denial of the teacher's harassment complaint filed against the principal….
Dodge worked as a teacher for the District for over 17 years. For the 2019–2020 school year, he was assigned to teach at Wy'east Middle School (Wy'east) for the first time, and his class was sixth grade science. The week before school started, Dodge attended a cultural sensitivity and racial bias training held at Wy'east presented by a professor from Washington State University. There were approximately 60 attendees at the training. Dodge wore his MAGA hat up to the front doors of the school and then took it off when he entered the building. During the training, Dodge sat near the back of the room and placed his hat either on the table in front of him or on top of his backpack; he did not wear his hat during the training. [More facts excerpted at the end of the post. -EV] …
Principal Garrett allegedly threatened Dodge with punishment for wearing the MAGA hat, and Garrett sued. The court began by concluding that Dodge's speech was protected, even given the greater deference given to the government restricting the speech of its own employees:
Whether a public employee like Dodge has engaged in speech protected by the First Amendment breaks down to [three] inquiries: (1) whether he "spoke on a matter of public concern," … (2) whether he "spoke as a private citizen or public employee[,]" [and (3)] {whether [the employer] had a legitimate administrative interest in preventing [the employee's speech that outweighed [the employee's] First Amendment rights} …
[1.] Dodge's speech was his display of Donald Trump's presidential campaign slogan on a red hat. The content of this speech is quintessentially a matter of public concern…. Indeed, Principal Garrett and others viewed Dodge's hat as a comment on issues such as immigration, racism, and bigotry, which are all matters of public concern….
Defendants also suggest that the context of Dodge's speech—a teacher-only training with a limited audience—undermines the conclusion that any message Dodge was conveying was a matter of public concern. However, a government employee does not lose the right to speak out about issues of public concern in forums closed to the general public….
[2.] A person speaks in a personal capacity if he "'had no official duty' to make the questioned statements, or if the speech was not the product of 'perform[ing] the tasks [he] was paid to perform.'"
Here, Dodge had no official duty to wear the MAGA hat, and it was not required to perform his job. Nor did he wear the hat in school with students. That distinguishes this case from other cases involving speech in schools where the speech was reasonably viewed by students and parents as officially promoted by the school….
[3.] Principal Garrett contends that her interest in preventing disruption among the staff at Wy'east outweighed Dodge's right to free speech. Given the nature of Dodge's speech, she has a particularly heavy burden under the Pickering v. Bd. of Ed. (1968) test. Principal Garrett points to evidence that teachers and staff felt "'intimidated,' 'shock[ed],' 'upset,' 'angry,' 'scared,' 'frustrated,' and 'didn't feel safe'" after learning about Dodge's MAGA hat. But there is no evidence that Dodge's hat "interfered with h[is] ability to perform h[is] job or the regular operation" of the school, or that its presence injured any of the school's legitimate interests "beyond the 'disruption that necessarily accompanies' [controversial] speech."
There is no evidence that Dodge or his hat interfered with the teacher training sessions. Dodge sat in the back of the room quietly during both trainings with the hat either on his table or on his backpack beside him. From the approximately 60 attendees present, fewer than five people complained, including the first presenter who was not a District employee and a teacher who did not work at Wy'east. And regardless, both trainings were completed without incident. Nor did Dodge's expression cause any disruption to school. He had his hat at teachers-only trainings where students and parents were not present, and he told Principal Garrett that he would not wear it "in class, around parents, or in front of kids." No students or parents ever complained about Dodge's MAGA hat.
In sum, while some of the training attendees may have been outraged or offended by Dodge's political expression, no evidence of actual or tangible disruption to school operations has been presented. Political speech is the quintessential example of protected speech, and it is inherently controversial. That some may not like the political message being conveyed is par for the course and cannot itself be a basis for finding disruption of a kind that outweighs the speaker's First Amendment rights. Therefore, Principal Garrett's asserted administrative interest in preventing disruption among staff does not outweigh Dodge's right to free speech. For all these reasons, Dodge has presented sufficient evidence to create a triable issue regarding whether Principal Garrett violated his constitutional rights….
Principal Garrett does not seem to dispute that she discriminated against Dodge's viewpoint simply to avoid the "discomfort and unpleasantness that always accompany an unpopular viewpoint." She argues to this court that having the hat on school grounds harmed the interests of Wy'east:
Mr. Dodge's decision to wear his MAGA hat on school grounds within weeks of the Trump Administration's loud and publicized initiative to deport as many immigrants as possible was an affront to Wy'east's agenda of cultural inclusivity and interest in creating a safe place for ELL [presumably English Language Learner -EV] students. Ms. Garrett had a reasonable basis, given the anti- immigrant tenor radiating from the administration, to demonstrate inclusivity and tolerance to ELL students and their parents on the school campus … Mr. Dodge had [no] overriding First Amendment right to wear the MAGA hat on campus given the school's stronger interest of fostering an atmosphere of workplace harmony, cultural inclusivity, and safety for the students and staff.
It goes without saying that Dodge disputes this characterization of his political views as evidenced by his testimony explaining why he liked the MAGA message of his hat. Accepting Principal Garrett's arguments that Dodge's hat created disruption that warranted restricting his expression would be akin to picking which of their competing political viewpoints is superior.
It would be one thing if Principal Garrett was enforcing a generally applicable policy that banned all political expression. A government employer can categorically prohibit political speech as a valid administrative interest such that the prohibition does not favor or disfavor any particular view. But that is not what happened here….
Even more troublesome, Principal Garrett openly admitted and defended her allowance of other political symbols and speech at Wy'east, including a Black Lives Matter poster hanging in the school library and a Bernie Sanders bumper sticker displayed on her own car. And this speech was not without its own controversies; when another teacher, married to a police officer, "expressed concerns about a Black Lives [Matter] poster" directly to Principal Garrett, she took no action and testified that she could not understand why the teacher "felt like [the poster] was disrespectful of police." Principal Garrett's explanation for her differing reactions boils down to her viewpoint preference:
While the Black Lives Matter poster is a symbol of cultural acceptance and inclusivity … Mr. Dodge's MAGA hat is a symbol commonly associated with white supremacy and other anti-immigrant sentiments. Comparing an innocuous bumper sticker and a racially supportive poster to the MAGA hat is troglodytic and unacquainted with the affairs of the world.
Based on the long-established precedent of both this court and the Supreme Court, a reasonable school administrator at the time of the events in this case would have known that this was improper and the perceived unpopularity of a political view is not itself justification to prohibit protected expression. Dodge's right to express political views, even as a public-school teacher, is clearly established [so that Garrett is not entitled to qualified immunity from liability]. That controversial political speech cannot be quelled because others may find the speech objectionable is clearly established. Taking these principles together, the outcome of the Pickering balancing test in this case appears with "obvious clarity."
And, as promised, some more about the facts:
The professor leading the training saw Dodge's hat and complained to Principal Garrett after the training that she felt intimidated and traumatized. Principal Garrett also learned that Dodge's hat upset a few teachers who attended the training. One teacher had cried, and another found the hat "threatening." There is no allegation that Dodge did anything with his hat during the training other than place it near him with his other things, nor is there any allegation that he did anything to interfere with or disrupt the training.
Principal Garrett spoke to Dodge in his classroom. She asked Dodge why he wore the hat, and he stated that he wore it to protect sunspots on his head. He also explained that he "like[s] the message" behind the hat because it "speaks to everybody" by saying "let's all do it the best that we can and be the best that we can be at whatever it is that we do." Principal Garrett responded that "some people take [the hat] as a symbol of hate and bigotry" and that while she could not ask him to stop wearing it, he should use "better judgment" in the future. Dodge tried to explain that he wore the hat to show that "[m]aybe they're not all bad," but by the end of the conversation he understood that Principal Garrett was effectively asking him not to wear his MAGA hat at Wy'east. For her part, Principal Garrett said that Dodge denied trying to "engender some kind of response with the hat" by bringing it to a racial equity training. She also stated that Dodge attempted to talk politics during their conversation but that she "shut it down."
The next day, Dodge attended another teacher training that was held at Evergreen High School. He again wore his MAGA hat before entering the building and then took it off while he was inside. A teacher who was present at the first day's training saw the hat and texted Principal Garrett. Principal Garrett again called HR Officer Gomes. This time they agreed that Principal Garrett needed to "set a clear directive with [Dodge]" to "not hav[e] the hat in the training where it was causing the disruption to staff."
When the training at Evergreen High School was over, Dodge drove back to Wy'east for a third training that was later that same day. This time, he left his MAGA hat in his truck and did not bring it into the Wy'east building. When the training was over, Dodge stayed behind to talk to Principal Garrett about teaching classes other than science. The parties disagree about what happened during this conversation. Dodge alleges that when he approached Principal Garrett she stated: "What is the fucking deal with your hat?" She also called Dodge a "homophobe and a racist and a bigot and hateful." And when he denied wearing his hat at Wy'east the second day, she called him a "liar" and specified that she did not want him wearing the hat "period." Finally, Principal Garrett said: "[N]ext time I see you with that hat, you need to have your union rep. Bring your rep because I'll have mine." Principal Garrett disputes that she mistreated Dodge, including by using profanity or raising her voice, but she admits that she was frustrated and viewed Dodge continuing to have his hat with him as "insubordination."
Later that night, Dodge emailed Principal Garrett stating that he was "taken back by our conversation today when you told me if I wear that hat again, that I better have a representative with me." He stated that her "unprovoked attack" made him "sick to [his] stomach" and nervous, but that he was "sorry for offending [her]." Principal Garrett responded two days later recounting that he admitted to wearing "the hat to purposefully provoke a reaction or response from [his] colleagues." She explained that her reference to union representation only meant that "if we needed to discuss [the MAGA hat] again, I would have another administrator with me to take notes and you would be invited to bring a representative." Principal Garrett forwarded Dodge's email and her response to HR Officer Gomes, who praised it as an "[e]xcellent response!" …
[Principal Garrett was investigated by the District, and ultimately pressured into resigning:] {[A]ware of other complaints about Principal Garrett lodged by school parents, the school board ordered further investigation into whether Principal Garrett had acted professionally in her interactions with Dodge. During this second investigation, the school board informed Principal Garrett that it had a "strong belief" that her conversations with Dodge were not as she had represented in addition to concerns about her "professionalism which bring credibility into question." Ultimately, the school board gave Principal Garrett the choice of resigning as principal and accepting a demotion or facing disciplinary proceedings. She resigned at the end of the school year.} …
Congratulations to Gary W. Manca (Talmadge/Fitzpatrick), who represents the plaintiff.