Federal appeals court rules school teacher’s MAGA hat is protected speech

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A federal appellate court ruled that a Washington state public school teacher was engaged in protected speech when he brought his “Make America Great Again” hat to school.  

Key Players

Eric Dodge is a teacher at Wy’east Middle School, one of six middle schools in the Evergreen Public Schools district in Vancouver, Washington, the largest city in Clark County, and a suburb of Portland, Oregon. 

Caroline Garrett is the former principal of Wy’East Middle School. In 2020, she resigned from her position over unrelated parental complaints. 

Jenae Gomes is the district’s chief human resources officer. 

Further Details

Court documents indicated that Dodge had worked for the school district for more than 17 years. The 2019-20 school year was Dodge’s first year teaching at Wy’east, where he was assigned to a sixth-grade science class.

A week before school started, Wy’east held a cultural sensitivity and racial bias training program led by a Washington State University professor. 

The first day of training, on Aug. 22, 2019, covered implicit bias, diversity, and racial equity. Dodge wore his “MAGA” hat, the signature red baseball cap bearing former President Donald Trump’s campaign slogan, on his way into the building, but took it off when he entered.

During the training, the hat was still near Dodge and his belongings. Several teachers raised concerns, including the instructor for the training, who told Garrett that she felt “intimidated and traumatized” by the hat.

According to court documents, Garrett called Gomes to discuss what to do “without infringing or disrespecting anyone,” and they decided to talk to Dodge. Garrett told Dodge that while she could not prevent him from wearing the hat, he should use better judgment in the future. Dodge “denied trying to ‘engender some kind of response with the hat’ by bringing it to a racial equity training,” court documents stated.

On Aug. 23, Dodge wore the hat to the second day of training, again taking it off before he entered the building. Garrett and Gomes decided that Dodge should be reprimanded.

Court documents also state that Dodge and Garrett argued about what happened. Dodge claimed that Garrett called him a “homophobe and a racist and a bigot and hateful,” while Garrett said she expressed frustration but did not raise her voice.

After Dodge consulted his union representative, who found that the district would not take action against Garrett, a formal complaint was filed with the district, which led to an independent investigation. 

The investigation concluded that Garrett had not violated any nondiscrimination policy. However, court documents noted that Gomes had asked the investigator to remove two findings from the report, one that said Dodge had been “singled out” and another that delved into “freedom of expression,” which she felt was outside the scope of the investigation. 

Outcome

Dodge files suit

On March 11, 2020, Dodge filed suit in U.S. District Court for the Western District of Washington against Garrett, Gomes, and the school district, alleging that Garrett and Gomes violated his “constitutional rights to freedom of speech and due process under the First, Fifth, and Fourteenth Amendments to the United States Constitution.” 

The next year, Dodge set up a GoFundMe to help pay for legal fees, writing to potential supporters that he was trying to “fight back and stand up for what I believe in.” 

“I spent 17 years teaching and coaching kids in The Evergreen School District that we were living in the land of the free, and day in and day out I told those same kids to stand up for what they believe in,” Dodge wrote. “For that reason I am fighting back and practicing what I preach.”

On May 3, 2021, U.S. District Judge James L. Robart, nominated by former President George W. Bush, granted Garrett, Gomes, and the district’s motions for summary judgment against all of Dodge’s claims, ruling that it was not clear they had violated the Constitution or if the school board behaved unconstitutionally. 

On May 25, Dodge appealed the decision. 

Appeals court rules

On Dec. 29, 2022, a three-judge panel of the 9th U.S. Circuit Court of Appeals found that Dodge’s hat was protected Free Speech under the First Amendment.

The appellate court partially reversed the district court’s decision, finding that Dodge’s First Amendment retaliation claim against Garrett held up, but not his claim against Gomes and Evergreen.

The decision said that although Dodge’s action may have caused controversy, it did not disrupt school operations, and that while “some may not like the political message being conveyed,” Garrett’s “asserted administrative interest in preventing disruption among staff does not outweigh Dodge’s right to free speech.”

The panel concluded that “a jury could find that Principal Garrett retaliated against” Dodge over “political speech protected by the First Amendment.” 

The court said there was “sufficient evidence to warrant a retrial on whether Garrett’s actions constitute First Amendment retaliation. In February 2023 the parties agreed to try to resolve the dispute through mediation. A trial is set for early 2024, should that fail.

Reactions to the ruling

Stephen Kanter, a First Amendment expert and dean emeritus at Lewis & Clark Law School in Portland, said that the appeals court made the correct judgment. “This is undeniably protected speech,” he said. “There is hate speech, there is threatening speech, but a MAGA hat falls far short of that.”

Jonathan Turley, a conservative legal scholar and law professor at George Washington University, also applauded the decision.

“The Ninth Circuit was clearly correct in finding the hat to be protected speech,” Turley wrote, adding that he was concerned over “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,” Turley wrote.