Law & Courts

A Teacher Argued His MAGA Hat Was Protected Speech. Here’s What a Federal Appeals Court Said

By Mark Walsh — January 04, 2023 4 min read
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In a case brimming with symbols of tensions about the nation’s divisions over politics and racial equity, a federal appeals court has upheld the right of a teacher to bring his “Make America Great Again” hat to racial bias and cultural sensitivity training sessions.

The court said a school principal likely violated the teacher’s rights when she discouraged him from bringing to school the hat bearing the slogan associated with former President Donald Trump.

“Next time I see you with that hat, you need to have your union rep,” Caroline Garrett, the principal of Wy’east Middle School in Vancouver, Wash., told 6th grade science teacher Eric Dodge in 2019, according to court papers.

“Principal Garrett went beyond criticizing Dodge’s political views,” a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, said in reviving the teacher’s First Amendment lawsuit on Dec. 29. “She suggested that disciplinary action could occur if she saw Dodge with his hat again by referencing the need for union representation. … It is hardly controversial that threatening a subordinate’s employment if they do not stop engaging in protected speech is reasonably likely to deter that person from speaking.”

The 9th Circuit panel suggested, without ruling as much, that a case involving a teacher wearing a MAGA hat in the classroom would raise other legal considerations.

The teacher’s display of his hat at teacher-training sessions “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,” the 9th Circuit said in the case known as Dodge v. Evergreen School District No. 114.

“Where Dodge was not taking advantage of his position to press his particular views upon the impressionable and captive minds before him, but rather was displaying a message on a personal item while attending a teacher-only training, we have little trouble concluding that he was engaging in expression as a private citizen, not a public employee,” the court said.

Some teachers were upset by the MAGA hat

According to court papers, Dodge was a teacher in the district but was new to Wy’east Middle School in the fall of 2019. He arrived for the racial bias training session wearing his MAGA hat, but removed it when he entered the building. Still, he displayed it at his table or on top of his backpack. A professor from Washington State University leading the session saw the hat and reported to Garrett, the principal, that she felt intimidated and traumatized. A few teachers were upset as well.

Garrett asked Dodge about the hat after the session. He told her he wore hats to protect his head from the sun but that he liked the MAGA hat’s message. He said he was not trying to provoke a reaction at the training session with the hat.

The principal told him that some perceived the hat as a symbol of “hate and bigotry” and that he should use “better judgment” in the future. The next day, Dodge brought the hat to another teacher training session, this one at a high school in the district. Another teacher texted Garrett, and the principal confronted Dodge later in the day. Dodge alleges that the principal used profanity and threatening language, which the principal denies, but there seemed to be little dispute about Garrett telling Dodge he would need his union representative if he brought the hat to school again.

The teacher filed an internal complaint against his principal, and the district’s human resources department eventually concluded that Garrett did not violate any school policy in admonishing Dodge about his hat. (The opinion notes that the principal was later asked to resign or face demotion by the school board amid concerns about her truthfulness in the matter and other issues.)

Dodge sued Garrett, along with a district human-resources officer, and the district, claiming retaliation in violation of the First Amendment by virtue of the chill on his speech from the principal’s threat of adverse job action. A federal district court granted summary judgment to all the defendants, and held that Garrett (as well as the HR official) had qualified immunity because it was not clear that their actions violated the Constitution.

The 9th Circuit held that Dodge did not have a case against the HR official or the school district. But it revived his case against the principal. The court said Garrett did not merit qualified immunity as it was clearly established that a MAGA hat was speech that is “quintessentially a matter of public concern” and that by displaying his hat at teacher training sessions, Dodge was acting as a private citizen.

The court said there was no evidence that Dodge’s display of his hat disrupted the training sessions.

“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,” the 9th Circuit panel said. “Political speech is the quintessential example of protected speech, and it is inherently controversial.”

The court noted that after the incident the Evergreen district adopted a rule barring political messaging by its employees, and it suggested that rule was defensible as long as no particular views were targeted.

“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,” the court said.

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