In Dodge v. Evergreen School Dist. No. 114, the United States Court of Appeals for the Ninth Circuit (which does not have jurisdiction over Illinois) revived a teacher’s First Amendment retaliation lawsuit against a former principal who threatened the teacher with disciplinary action if he continued to bring his Make America Great Again (MAGA) hat with him to teacher-only trainings, but it affirmed the district court’s grant of summary judgment in favor of the school district and another employee.
In this case, a 17-year teacher of the District brought his MAGA hat with him to a cultural sensitivity and racial bias training that was attended by teachers only. The first day, he wore his MAGA hat up to the front door of the building but removed the hat before entering the building. During training, he sat in the back of the room and placed his hat either on the table in front of him or on top of his backpack. The trainer saw the hat and complained to the principal that she felt “intimidated and traumatized.” Another teacher found the hat “threatening.” The principal told the teacher later that day that he should use “better judgment” in the future and that “some people take the hat as a symbol of hate and bigotry.” The next day, the teacher brought the hat to training again, and the trainer again reported it to the principal. The teacher alleged that the principal then called him a “homophobe and a racist and a bigot and hateful” and told him, “next time I see you with that hat, you need to have your union rep. Bring your rep because I’ll have mine.”
The teacher sued the District and, in their individual capacities, the principal—who previously resigned after being threatened with disciplinary proceedings—and the District’s Chief Human Resource Officer (“HR Officer”), alleging that they retaliated against him for engaging in protected speech. The district court granted summary judgment in favor of all defendants, and the teacher appealed.
On appeal, the court first held that the teacher was engaged in protected speech when he brought his MAGA hat with him because the MAGA hat conveyed a message on a matter of public concern and because he was acting as a private citizen in expressing the message.
Second, the court concluded that triable issues of fact existed with respect to whether the principal took adverse employment action against the teacher when she suggested that disciplinary action could occur if he continued to bring the MAGA hat to trainings.
Third, the court found that the principal—whose actions were undeniably motivated by the MAGA hat—did not have a legitimate administrative interest in preventing the teacher’s speech. In particular, the court noted that while some of the other individuals attending the training may have been outraged or offended by the teacher’s political expression, no evidence of actual or tangible disruption to the school’s operations had been presented. The court further stated, “[t]hat 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.” This is especially true where it is well established that “controversial political speech cannot be quelled because others may find the speech objectionable.” Accordingly, the appellate court sent the matter back to the trial court for further proceedings.
However, the appeals court affirmed the district court’s grant of summary judgment with respect to the teacher’s claims of retaliation against the District and its HR Officer. In particular, the court found that the teacher failed to prove that the HR Officer took any adverse employment action against the teacher. The court further found that the school board’s decision to dismiss the teacher’s complaint against the principal did not create liability.
While this case is not binding on Illinois schools, it is a good reminder that just because speech is disagreeable to some does not mean it automatically warrants disciplinary action. First Amendment rights of public employees are nuanced, so consult with legal counsel before disciplining employees for their speech.
For questions about this case or employee First Amendment rights, contact Chris Hoffmann, Jeff Goelitz, or any attorney in our Labor/Personnel practice group.
Source: Dodge v. Evergreen School Dist. No. 114, 56 F.4th 767 (9th Cir. 2022)
