9th Circuit: Principal faces liability for banning MAGA hat….

Mr. Dodge brought his MAGA hat to the teacher training on cultural sensitivity and racial bias.  He didn’t wear it into the building, but left it on his desk or his backpack as he sat quietly in the back of the room during two days of training.  The Washington State University professor who led the training saw the hat and told the principal that it made her feel “intimidated and traumatized.”  One teacher cried. Another found the hat “threatening.”  In all, however, fewer than five of the 60 attendees complained about Mr. Dodge’s hat. Mr. Dodge was silent throughout the two days and the training was completed without incident.  But that red hat sat there for all to see.

After the first day of training, the principal advised Mr. Dodge that some of his colleagues were upset about his choice of headwear. She encouraged him to “use better judgment” but added that she could not ask him to stop wearing the hat.  After the second day of training, the principal took a harder line. According to Mr. Dodge (soon to be known as “the Plaintiff”) the principal swore at him and accused him of being a “homophobe and a racist and a bigot and hateful.”  The principal told the teacher that “the next time I see you with that hat, you need to have your union rep.” 

Mr. Dodge filed a “harassment, intimidation and bullying (HIB) complaint against the principal, and asked for a transfer to a different campus, which ultimately led to his lawsuit against the principal, the HR Director and the district.  The court dismissed the claims against the HR Director and the district, but the Dawgworthy aspect of this case involves Principal Garrett.

The 9th Circuit held that Principal Garrett was not entitled to qualified immunity. She faces possible personal liability for an infringement of the teacher’s constitutional right to free speech.  Here are the takeaways from this decision.

  1. Wearing a MAGA hat is uber-protected as free speech because the First Amendment  “affords the broadest protection to….political expression.”  The court observed that “The messages of candidates for public office are not only newsworthy; they inherently relate to the ‘political, social, or other concern to the community.’”
  2. A supervisor threatening an employee with disciplinary action is an “adverse employment action.”
  3. When an employee speaks as a citizen on a matter of public concern, the government has a high burden of proof to justify infringing on that speech.
  4. It was significant that this was a teacher-only training.  Had Mr. Dodge wore the hat in the classroom, which he had promised not to do, the case might have come out differently.

The principal justified her actions in two ways: first there were teachers who were angry, offended, and even fearful due to a fellow teacher displaying this hat. Second, the hat “was an affront to the [school’s] agenda of cultural inclusivity and interest in creating a safe place for ELL students.”  The principal noted the context—that this all occurred “within weeks of the Trump Administration’s loud and publicized initiative to deport as many immigrants as possible.” The court found that argument to be indicative of the principal’s viewpoint bias.  Here’s an important quote:

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.

How did the court come to that conclusion? Well, for one thing there was the Black Lives Matter poster in the school library. It turns out a teacher who was married to a police officer complained about the BLM poster, but it stayed up. The court quoted Principal Garrett’s explanation for why the BLM poster was OK but the MAGA hat wasn’t:

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.

Oh, I forgot to mention the “innocuous bumper sticker.” It turns out that there was a car in the faculty parking lot sporting a Bernie Sanders bumper sticker. Principal Garrett’s car. 

As to the upset teachers, the court applied the familiar Tinker test: was there a material and substantial disruption of the teacher training?  No.  Just people who strongly disagreed with Mr. Dodge and were upset and angry that he chose to express his view.  As we all should know by now, free speech often makes people angry.  It’s part of living in a country that has a First Amendment.

The court held that it should have been obvious to the principal that she was infringing on the teacher’s free speech rights. Therefore, she could not claim qualified immunity.  Nor can she continue to serve as principal.  After an investigation into how Principal Garrett handled this situation the board gave her a choice: accept a demotion or face disciplinary proceedings. She resigned.

It’s Dodge v. Evergreen School District #114, decided by the 9th Circuit on December 29, 2022.  It will be published in the Federal Reporter, but for now it’s at 2022 WL 17984059.


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com

Tomorrow: the kid with the MAGA hat….