Free Speech Rights of Staff – 9th Circuit Court of Appeals Update

At the end of 2022, the 9th Circuit Court of Appeals decided the case of Dodge v. Evergreen School District, No, 21-35400 (Dec. 29, 2022). The case involved Eric Dodge, a teacher who had worked for Evergreen School District for 17 years, and who had been assigned to a new middle school for the first time during the 2019-2020 school year. The week before school began, Dodge attended a cultural sensitivity and racial bias training held at his assigned school. He wore a Make America Great Again – MAGA – hat to the school’s front doors and placed it on the table next to him or on top of his backpack during the training.

District staff and the professor leading the training both complained to the school’s principal, who was also Dodge’s new assigned supervisor. District teachers reported to the principal that they felt threatened and upset by the hat’s presence, and the professor leading the training said she felt intimidated.

The principal spoke to Dodge about the MAGA hat after the end of the first day of training. Dodge said he wore the hat to protect his head and that he liked the hat’s message that everyone should be the best they can be at what they do. The principal explained that some people viewed the MAGA slogan as a symbol of hate and bigotry. The principal asked Dodge to exercise better judgment in the future.

Dodge attended another teacher training the following day at a different school. He again wore the MAGA hat outside and set it next to him during the training. Dodge’s supervising principal met with him again and told him that if he wore the MAGA hat again, they would need to discuss it at a meeting where he had his union representative present with him.

Dodge filed a harassment, intimidation, and bullying complaint against the principal and requested to be transferred to a different school. The HR officer who had counseled the principal on responding to the MAGA hat complaints from teachers initiated an investigation into Dodge’s complaint per district policy. The district hired a third-party investigator, who found that Dodge was denied his freedom of expression and that he had not violated any district policy by wearing the MAGA hat. The investigator also found that the principal’s reference to bringing union representation at a subsequent meeting if Dodge wore the hat again could be perceived as a threat of discipline but did not rise to harassment, intimidation, or bullying. The district HR officer asked the third-party investigator to make some changes to the preliminary findings before issuing a final report.

The district determined that the principal had not violated the harassment, intimidation, and bullying policy and would take no further action. However, the district did transfer Dodge pursuant to his request and would provide training to its employees about allowing employees to engage in political discourse without violating constitutional rights. Dodge appealed the dismissal of his harassment, intimidation, and bullying complaint to the school board. The school board affirmed the dismissal of the complaint. The principal resigned at the end of the 2019-2020 school year due to additional concerns reported by parents.

Dodge sued the school district, the principal, and the HR officer. He alleged that the principal and HR officer violated his First Amendment right to free speech when they retaliated against him for bringing his MAGA hat to the teacher trainings. He alleged that the school board ratified the unconstitutional actions of the principal and HR officer when it affirmed the denial of his harassment, intimidation and bullying complaint against the principal.

The U.S. District court of Washington granted summary judgment against Dodge on all of his claims and concluded that the principal and HR officer were immune from the lawsuit because their actions did not clearly violate Dodge’s constitutional rights, and that the school board did not ratify any constitutional actions by the principal or HR officer when it affirmed the denial of Dodge’s complaint.

The 9th Circuit Court of Appeals disagreed with the district court and found that Dodge has the right to prove at trial whether the principal violated Dodge’s constitutional rights because there was no evidence of “actual or tangible disruption to school operations” as a result of Dodge wearing the MAGA hat, and there is a clearly established First Amendment right of employees to engage in controversial political speech even when others find the speech objectionable.

Takeaways:

• Employees can be prohibited from engaging in political speech altogether in a way that does not favor or disfavor any particular point of view. Evergreen School District did not, at the time Dodge wore his MAGA hat to these trainings, have a policy that prohibited all political messaging. The issue in this case was that the principal targeted Dodge’s MAGA hat because of its message. See the Oregon Secretary of State’s Restrictions on Political Advocacy by Public Employees guidance document for more information about Oregon public employee political speech.
• Controversial speech inherently causes some disruption to workplace harmony because others disagree with the message; however, a district wanting to avoid the unpleasantness that follows an employee’s expression of an unpopular viewpoint is not enough to justify a district’s decision to prohibit controversial speech—even if district staff report that the controversial speech makes them feel intimidated or threatened. 
• This case likely does not apply to a situation where a teacher wears a controversial political message in front of parents or students. Dodge wore his MAGA hat to a teacher-only training event led by a hired trainer, and told the principal he would not wear the hat during class or around parents. If he had, the district may have been concerned that Dodge was taking advantage of his position to promote the MAGA message, or that it would have been viewed as officially promoted by the district. 
• District officials can be liable for violating an employee’s right to free speech even if the district does not discipline an employee because of something the employee said/wore/displayed. If a district official says something to an employee that insinuates or threatens future discipline, this can violate an employee’s First Amendment rights because it may deter them from continuing to exercise their right to free speech. 
• Remember that sometimes even the “preliminary” reports of third-party investigators may be used as evidence in a lawsuit. The 9th Circuit quoted several parts of the third-party investigator’s report even though those parts were removed from the final report at the request of the district’s HR officer. 
• Consult with your school’s general counsel or PACE legal at [email protected] before taking any adverse action against a staff member for their speech.