Teacher Can Proceed With First Amendment Lawsuit Over Threatened Punishment for Wearing MAGA Hat to Training
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
Article from Reason.com
