Ninth Circuit Rules That Middle School Teacher’s MAGA Hat Was Protected Speech

Authored by Jonathan Turley,

There is a major ruling out of the United States States Court of Appeals for the Ninth Circuit in favor of a middle school science teacher, Eric Dodge, who was barred from wearing a “Make America Great Again” baseball cap and later berated by the principal, Caroline Garrett, as a “racist” and a “homophobe.”

The unanimous court ruled that the hat was protected speech under the First Amendment.

District Court judge James L. Robart ruled against Dodge and dismissed the case in its entirety.  (Robart is the judge who was publicly denounced by former President Trump).  Robart dismissed the case on the grounds of qualified immunity or a failure to substantiate claims.

The Ninth Circuit reversed Robart, but it did uphold the dismissal of the case against two defendants, the Evergreen Public Schools district and the district’s Chief Human Resources Officer Jenae Gomes.

Eric Dodge had only recently been assigned to the school after he recovered from a stroke. He is a 17-year veteran of the Evergreen district. He told Garrett that he wore the hat because he had sensitive spots on his scalp that had to be protected from the sun. He also said that he agreed with the message of the hat. Garrett said that the hat represented hate and prejudice to many others.

Garrett’s view of the MAGA hat as a symbol of hate has been fueled in the media by various leaders, particularly President Joe Biden who was denounced for his attacks on “MAGA Republicans” in his Philadelphia speech. We have also seen students and others attacked for wearing the hats. At Fordham University, a coffee shop banned the wearing of the hats.

Dodge wore the bright-red “MAGA” to a cultural sensitivity training. He actually did not wear the hat in the training session with around 60 people but put it  on the table or next to him. Nevertheless, some attendees complained that they felt “intimidated” and “threatened” by Dodge’s decision to have the hat with him.

The choice of headwear did not go over well with Garrett in particular:

“The first day, Principal Garrett, who was Dodge’s supervisor, told him that he needed to use “better judgment” and not have his MAGA hat at Wy’east. The second day, she called him a racist, a bigot, a homophobe, and a liar, and swore at him for having his MAGA hat with him again. By itself, such criticism or “bad-mouthing” does not constitute an adverse employment action sufficient for a First Amendment retaliation claim. … Principal Garrett also has First Amendment rights after all. See id. (“It would be the height of irony, indeed, if mere speech, in response to speech, could constitute a First Amendment violation.”). But Principal Garrett went beyond criticizing Dodge’s political views. She suggested that disciplinary action could occur if she saw Dodge with his hat again by referencing the need for union representation: “The next time I see you with that hat, you need to have your union rep. Bring your rep because I’ll have my own.” 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. … Principal Garrett claims that she was “[s]imply advising Mr. Dodge of his right to have a representative at any future conversations about the hat,” which is his right under his collective bargaining agreement. This characterization undersells the import and implications that a reasonable employee would attribute to such a statement.”

The Ninth Circuit ruled that the school district failed to show evidence of a “tangible disruption” to school operations that would outweigh the teacher’s First Amendment rights.

Notably, there was “no general prohibition on political speech” when Garrett told Dodge he could not bring his MAGA hat to school. His counsel noted that Garrett allowed a Black Lives Matter poster to hang in the library and had a Bernie Sanders bumper sticker on her car.

The Ninth Circuit correctly ruled in favor of Dodge. It found:

“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. The messages of candidates for public office are not only newsworthy; they inherently relate to the ‘political, social, or other concern to the community.” Lane, 573 U.S. at 241 … 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. … And regardless of Dodge’s intent, the MAGA hat has an obvious political nature.”

We have previously discussed court rulings against employees who insisted on wearing political hats or symbols at work.  The Ninth Circuit distinguished this case where a teacher was not in class or interacting with students:

“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. … Where Dodge was not taking ‘advantage of his position to press his particular views upon the impressionable and ‘captive’ minds before him,’ Poway Unified Sch. Dist., 658 F.3d at 968, 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.

Because the undisputed facts demonstrate that Dodge’s MAGA hat conveyed a message of public concern and he was acting as a private citizen in expressing that message, we conclude that Dodge was engaged in speech protected by the First Amendment.”

The Ninth Circuit was clearly correct in finding the hat to be protected speech. What is concerning is the lack of any discipline for Garrett or others who sought to prevent opposing political views from being expressed by teachers. The denial of free speech should be treated as seriously as other abuses. There should be consequences for administrators who discriminate on the basis on race, gender, religion, sexual orientation, or political viewpoints. This was a denial of First Amendment rights that should warrant some adverse action for those responsible in the school district.

While Garrett chastised Dodge to use “better judgment” in the future, the question is whether she or other administrators will do so in light of this ruling. They showed terrible judgment in attacking Dodge over his political views. Others showed equally bad judgment in litigating this case rather than settling the matter with Dodge.

This ruling will certainly create clear guidelines for the future, but the case also shows the sense of license of many teachers in curtailing the rights of others with opposing political views. That sense of license will continue despite this ruling if there are no consequences for denying free speech rights.

Here is the opinion: Dodge v. Evergreen District