Avoid Viewpoint Censorship (Or Prepare to Be Sued!)

By AYZ Education Law Group

January 17, 2023

In a recently issued decision, the Ninth Circuit Court of Appeals reversed a trial court decision in favor of a principal who allegedly retaliated against a teacher for wearing a “Make America Great Again” hat to a teacher training, providing an important reminder that viewpoint discrimination is unlawful and can lead to civil liability. See Dodge v. Evergreen Sch. Dist. #114, No. 21-35400, 2022 U.S. App. Lexis 35868 (9th Cir., Dec. 29, 2022)

Eric Dodge, a sixth-grade science teacher in Washington state’s Evergreen School District (“the District”), attended a cultural sensitivity and racial bias training just before the start of the 2019-2020 school year. He wore his Make America Great Again (“MAGA”) hat to the front door of the school, then took it off and placed it on the table in front of him or on his backpack throughout the training. His actions were alleged to have traumatized the professor who led the training and upset some of his colleagues. . The principal of the school, Caroline Garrett, approached Dodge later that day, wherein she explained that the hat was causing distress to those who viewed it as “a symbol of hate and bigotry” and asked him to exercise “better judgment.” The following day Dodge wore the hat to the door of the high school for another training, but again removed it once inside. Again, a teacher alerted Principal Garrett and again, she met with Dodge regarding the MAGA hat.. This time, Garrett is alleged to have used profanity, raised her voice and told him, “The next time I see you with that hat, you need to have your union representative.”

Dodge filed a harassment, intimidation and bullying complaint against Garrett under the District’s policy, and requested a transfer to another school. His complaint was investigated by an outside agency, which determined that, though Dodge had in fact been “singled out” for his “political beliefs,” there was no policy violation because District policy did not ban discrimination based on political beliefs and Garrett’s actions did not rise to the level of harassment, intimidation or bullying. Based on this finding, the District’s HR director denied Dodge’s complaint. Dodge appealed to the school board, which affirmed the decision, though the District later asked Garrett to either resign or face disciplinary proceedings due to concerns about her credibility and professionalism. She ultimately resigned.

Dodge sued Garrett, the HR Director and the District under the Civil Rights Act, 42 U.S.C. § 1983, alleging that Garrett and the HR Director retaliated against him for exercising free speech pursuant to his First Amendment rights. He challenged the District ‘s ratification of the alleged unconstitutional actions of the individual defendants through its denial of Dodge’s complaint. The District Court dismissed the claims against all three defendants. However, upon review the Ninth Circuit determined that the District Court should have allowed the case against Garrett to proceed.

In order to establish a prima facie case for First Amendment retaliation, a plaintiff must prove (1) that he engaged in protected speech; (2) the defendants took an “adverse employment action” against him; and (3) the speech was a “substantial or motivating factor for the adverse employment action.” If that is established, the burden shifts, and a defendant can avoid liability by showing that it had “a legitimate administrative interest” in suppressing the speech that outweighed the plaintiff’s First Amendment rights. Public employees engage in speech protected by the First Amendment when they (1) speak on matters of public concern and (2) they do so as a private citizen and not as a public employee.

The Ninth Circuit concluded that Dodge’s “speech”—the display of a presidential candidate’s slogan—was “quintessentially a matter of public concern” and that, because he did not wear the hat in school while teaching students and was not required to wear a hat to perform his job, his speech was clearly that of a private citizen. The Court also ruled that there was sufficient evidence to suggest that Dodge was subjected to an adverse employment action if Garrett indeed told him to “use better judgment” before wearing his hat again and then threatened a meeting where he would “need [his] union representative” if he wore the hat again.

The Court applied the Pickering balancing test, a reference to the analysis promulgated by the Supreme Court that courts across the country must apply in First Amendment cases involving public employee speech.. Pickering requires courts to engage in a “fact-sensitive and deferential weighing” – weighing the government’s legitimate interests as an employer against the First Amendment rights of the employee. Applying Pickering, the Court concluded that, though other employees who saw Dodge’s MAGA hat said they felt “intimidated,” “shocked,” “upset,” “angry,” and “scared,” Dodge’s actions still did not interfere with his ability to do his job or disrupt the normal operations of the school. The Court pointed out that the teacher training sessions were completed and only a fraction of those present complained about Dodge.

In order to rule that Garrett could be held individually liable for her alleged comments, the Court had to also find that she was not entitled to “qualified immunity,” a form of legal protection from individual liability for individuals acting in their official capacities. To lose qualified immunity, an individual must violate a “clearly established” constitutional right of another. The Court was unequivocal on this point , finding that “it was patently unreasonable for 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 court pointed out that Garrett was free to enforce a generally applicable, viewpoint neutral, policy banning all political expression, but that she had not done so, instead clearly targeting Dodge’s particular viewpoint. In fact, she had allowed other political speech, including a Black Lives Matter sign in the school library and another political candidate’s sticker on her own vehicle. This obvious “viewpoint preference,” the Court said, made it abundantly clear that there was no legitimate justification for prohibiting Dodge’s expression.

The Dodge decision is an important reminder in politically divisive times that government employees still maintain some level of First Amendment protection, and that viewpoint discrimination is prohibited.

Should you have any questions about this case, or any other employment-related questions, please do not hesitate to reach out to William J. Zee or any of the attorneys in the Appel, Yost & Zee Education Law Group.