By Zachary Stieber
A teacher who wore a “Make America Great Again” hat to school was engaging in constitutionally-protected free speech, a U.S. appeals court has ruled.
Eric Dodge, the teacher, wore the hat to two days of teacher trainings in 2019 at schools in Washington state, taking it off before entering the buildings but setting it near him.
Caroline Garrett, the principal of one of the schools, Wy’East Middle School, told Dodge on the first day to “use his better judgement.” On the second day, she allegedly said, “What is the [expletive] deal with you and your hat!” and called the teacher a racist and bigot before telling him to bring his union representative the next time they spoke.
In respond to Dodge’s lawsuit claiming constitutional violations, Garrett said she was motivated by a desire to prevent disruptions to the school, which employed Dodge as a science teacher.
But Dodge’s wearing the hat was speech protected by the U.S. Constitution’s First Amendment, a panel of the U.S. Court of Appeals for the Ninth Circuit said in its Dec. 29 ruling.
“Principal Garrett’s asserted administrative interest in preventing disruption among staff does not outweigh Dodge’s right to free speech,” U.S. Circuit Judge Danielle Forrest, writing for the majority, said.
Several people attending the trainings complained about the hat but nobody, including the principal, presented evidence that Dodge had disrupted school operations.
“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,” Forrest said.
The panel consisted of Circuit Judge Forrest; Circuit Judge Michael Hawkins, a Clinton appointee; and Jane Restani, a Reagan appointee who sits on the U.S. Court of International Trade.
“The Court correctly found what Ms. Gomes and EPS have said all along – they did not retaliate in any way against Mr. Dodge. Ms. Gomes and EPS are happy to have this matter behind them,” Michael McFarland, a lawyer for Evergreen Public Schools (EPS) and Janae Gomes, a human resources official for the district, told The Epoch Times via email.
A lawyer for Garrett declined to comment.
A lawyer for Dodge did not return an inquiry.
U.S. District Judge Thomas Robart, a George W. Bush appointee, had sided with the defendants in May 2021 and dismissed the case. Robart said the defendants were protected by qualified immunity, which generally protects government officials in civil cases unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known,” citing a separate court decision.
Robart said that the “disharmony” caused by Dodge’s wearing of the hat and the concerns put forth by Garrett and teachers meant Dodge was disrupting school operations, and that Dodge was insubordinate when he wore the hat the second day on the grounds of a different school after Garrett told him to use better judgement.
“Mr. Dodge’s right to wear his MAGA hat was not so ‘clearly established’ as to defeat Ms. Garrett’s assertion of qualified immunity,” Robart said.
The circuit court disagreed, and remanded the case back to Robart.
“Taking the facts in the light most favorable to Dodge, a jury could find that Principal Garrett retaliated against him for engaging in political speech protected by the First Amendment. Moreover, any violation of Dodge’s First Amendment rights by Principal Garrett was clearly established where long-standing precedent has held that concern over the reaction to controversial or disfavored speech itself does not justify restricting such speech,” the panel’s opinion stated.
The panel noted that Garrett said she disagreed with the message the MAGA hat imparted, including an alleged anti-immigrant message, even while allowing other political symbols and speech at the school, such as a Black Lives Matter poster in its library and a Sen. Bernie Sanders (I-Vt.) sticker on her car.
A key part of the ruling stemmed from Dodge being at the school while no students were present, the panel said. That meant Dodge was expressing himself as a private citizen, not a public employee. Dodge told the principal at one point that he would not wear the hat “in class, around parents, or in front of kids.”
Affirmed in Part
The new decision did affirm parts of Robart’s ruling.
The dismissal of the school district and Gomes, the human resources official who discussed with the principal how best to handle the situation, as defendants was upheld.
The actions taken by Gomes were not likely to deter the teacher from engaging in protected speech, the panel concluded. And the judges said the board did not ratify any infringement of Dodge’s rights by dismissing a complaint he had lodged because of the finding that Garrett did not violate any policy or procedure.
Gomes was named in part because she successfully had removed portions of a contractor’s investigation into Garrett’s handling of the situation from the final report, including the conclusion that Dodge was “singled out” because he wore the MAGA hat and that he was “denied his freedom of expression.” The contractor also said Garrett did not violate any district policies.
Dodge appealed the finding by the school board, which upheld the findings. But Garrett ended up resigning after the board later investigated whether she acted professionally while dealing with Dodge. The board said it strongly believed she misrepresented the interactions and, referring to other complaints against her, said her credibility was called into question.