A Teacher’s Wearing a MAGA Hat To A Sensitivity And Racial Bias Training Class Is Protected Speech Under The First Amendment

A Teacher Wearing a MAGA Hat To A Sensitivity And Racial Bias Training Class Is Protected Speech Under The First Amendment: Dodge v. Evergreen School District #114, 56 F.4^th 767 (2022)

The Plaintiff in Dodge v. Evergreen School District #114, 56 F.4^th 767 (2022) is a sixth-grade science teacher who had worked as a teacher for over 17 years.  Dodge was assigned to a new middle school (Wy’east Middle School) for the 2019-2020 school year.  Before school started, Dodge attended a “cultural sensitivity and racial bias training” class held at Wy’east Middle School.  Dodge wore a MAGA hat to the school entrance, and then took the hat off.  During the class, Dodge “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.”

Some of the teachers who attended the class were upset by Dodge’s hat: “[o]ne teacher cried, and another found the hat ‘threatening.’”[1]  Other than having his MAGA hat, Dodge did nothing to disrupt or interfere with the class.  The instructor leading the class was a university professor who did not work at Wy’east, “complained to Principal Garrett (the Principal of Wy’east) after the training that she felt intimidated and traumatized.”

Principal Garrett met with Dodge after the class and told him that while “she could not ask him to stop wearing it, he should use ‘better judgment’ in the future.”  Dodge explained that he ”like[s] the message” behind the hat because it ”speaks to everybody” by saying ”let’s all do it the best we can and be the best that we can be at whatever it is that we do.”  Principal Garrett told Dodge that some people view the hat “as a symbol of hate and bigotry.”

Despite his meeting with Principal Garrett, Dodge wore the MAGA hat the next day to a “teacher training” session that was held at a high school.  Dodge took the MAGA hat off before entering the high school.  One of the teachers attending the training had also attended the “cultural sensitivity and racial bias training” class held the prior day, and sent a message to Principal Garrett about the hat.

After the training session, Dodge returned to Wy’east.  Later that day, Dodge met with Principal Garrett.  The Court stated that the “parties disagree about what happened during this conversation.”  According to Dodge, Principal Garrett (a) called Dodge a “homophobe and a racist and a bigot and hateful,” (b) told him she did not want him wearing the MAGA hat, and (c) “[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 disputed Dodge’s claims.

Dodge brought a claim against Principal Garrett, among others, for retaliation for his exercising his First Amendment rights.  Dodge’s claim raised two sets of issues: (a) was Principal Garrett protected by qualified immunity, and (b) what did Dodge have to prove to support his First Amendment retaliation claim.

Public officials, when acting within the scope of their authority, are typically protected by what is called qualified immunity.  Qualified immunity prevents a plaintiff from getting monetary damages against a public official for violating the individual’s constitutional rights.  A public official, however, can lose qualified immunity protection.  The Ninth Circuit Court of Appeals in Dodge stated that Dodge would have to show the following in order to strip Principal Garrett of qualified immunity: (a) a “protected right was violated,” and (b) “that right was clearly established at the time of the violation.”  The Ninth Circuit ruled that the District Court erroneously held that no genuine issue of material fact existed with respect to Principal Garrett’s entitlement to qualified immunity.  The Ninth Circuit held that based on the facts in the record, when viewed in the light most favorable to Dodge, an issue of fact existed as to whether Principal Garrett was entitled to qualified immunity.

The Court’s ruling on qualified immunity was based, in part, on its finding that Dodge presented facts showing a clear violation of the First Amendment.  In order to show a First Amendment retaliation claim, Dodge had to show that (a) he was engaged in protected speech; (b) Principal Garrett made an ’adverse employment action’ against him; and (c) his “speech was a ‘substantial or motivating’ factor for the adverse employment action.”  With respect to the first element, the Court held that Dodge’s wearing a MAGA hat and bringing it with him into the training classes was protected speech.  The messages conveyed by the MAGA hat were fundamentally political messages and represented speech addressing a matter of public concern.  Political speech addressing matters of public concern are entitled to the highest level of First Amendment protection.

Dodge presented sufficient evidence that he suffered an adverse employment action.  The primary fact supporting this element was Dodge’s claim that Principal Garrett told him to bring his union rep to the next meeting if he wore his MAGA hat again.  The Court pointed out that an adverse employment action occurs when a “person of ordinary firmness” would refrain from speaking out based on the threat made to them.  The Court held that Dodge presented sufficient facts to have this issue go before a jury.

Finally, the Court rejected the argument that Dodge’s wearing a MAGA hat caused a material and substantial disruption of the school’s operations.  Dodge did not wear his MAGA hat in front of students or parents, and there was no evidence that his wearing the hat “interfered with h[is] ability to perform h[is] job or the regular operation of the school.”  That some participants at the training sessions found the MAGA hat objectionable was not sufficient to show a material or substantial disruption: “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.”

Addressing whether Principal Garrett’s conduct constituted a  “clearly established violation” of Dodge’s First Amendment Rights, the Court stated that “it was patently unreasonable for Principal Garrett to believe that she could restrict Dodge’s speech to quell what was, in reality, nothing more than the natural effect that disfavored political speech often has on those with different viewpoints.”  The record contained additional evidence showing that Principal Garrett allowed “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.”  This evidence suggested that Principal Garrett was censoring a viewpoint she disagreed with instead of trying to prevent a material and substantial disruption at the school.  While Principal Garrett was entitled to present evidence at a trial to disprove these facts or add additional facts, on a summary judgment motion, Dodge was entitled to have all reasonable inferences resolved in his favor.

As seen in this case, determining if an expression of free speech is protected under the First Amendment can be complex, but that should not deter you from protecting your rights. If you are in a situation in which you believe your right to free speech has been violated, it is essential to seek the assistance of an experienced Chicago civil rights attorney. The Law Offices of George M. Sanders P.C. has years of experience defending the First Amendment rights of clients. Get in touch with us today to discuss your situation.

[1] The case was decided on a summary judgment motion, so the Court’s task was to evaluate the evidence presented in a light most favorable to the Plaintiff, in order to determine if a genuine and material issue of fact existed for which a trial was necessary.  The facts stated in this post come from the Court’s decision and were not determined at a trial and are not, therefore, necessarily indicative of what actually happened.