The 9th Circuit Court of Appeals sided with a local middle school science teacher, ruling that his “Make America Great Again” baseball cap amounts to a form of political speech protected by the First Amendment.
Eric Dodge ran afoul of Evergreen Public Schools officials when he brought his bright-red “MAGA” hat – a trademark of former President Donald Trump – to a cultural sensitivity training. The appeals panel ruled late last week that his First Amendment rights had been violated when his employer told him he could not bring the hat to the training. Dodge claimed he was verbally attacked by his principal, who allegedly called him a “racist” and a “homophobe.”
Dodge’s initial internal harassment complaint filed with the district was dismissed as “unsubstantiated.” Dodge appealed a lower court’s ruling in favor of the district.
The appeals panel ruled that Dodge “was engaged in speech protected by the First Amendment.”
The judges conceded that some of the teachers at the training “may have been outraged or offended by the plaintiff’s political expression.” But the district failed to show evidence of a “tangible disruption” to school operations necessary to outweigh the teacher’s First Amendment rights, the court ruled.
The tension between cultural sensitivity and free expression has become a flashpoint between conservatives and liberals in the post-Trump era. Conservatives argue that the left’s political correctness demonizes dissent. Liberals counter that the right obscures hate speech behind a veil of First Amendment freedoms.
Stephen Kanter, a First Amendment expert and dean emeritus at the Lewis & Clark Law School, said the appeals court panel made the right call. “This is undeniably protected speech,” he said.
The country’s freedom of expression does have some significant exceptions. “There is hate speech, there is threatening speech,” Kanter said, “but a MAGA hat falls far short of that.”
The 9th Circuit Court of Appeals is commonly viewed as one of the most liberal panels in the federal courts. When Trump was president he repeatedly blasted the 9th Circuit for ruling against his plans for a stricter asylum policy and other matters.
Dodge was a 17-year veteran of the Evergreen district. In the 2019-20 school year, he was assigned to Wy’east Middle School. He was recovering from a stroke and this was his first time back at work after recovering, according to court records.
In August 2019, he attended a cultural sensitivity training. He took off his MAGA cap upon entering the training but left it visible on his desk.
Afterward, Wy’east Principal Caroline Garrett approached Dodge and told him she’d gotten several complaints about his hat. Dodge told her he wore it to protect spots on his scalp that were sensitive to the sun. He also said he liked the political message, court documents said.
Garrett answered that the hat represented hate and bigotry to many, according to court records. She said she couldn’t force Dodge not to wear the hat but asked him to “use better judgment” in the future.
The next day, Dodge again brought his MAGA cap to another district event at the high school, according to court records. That led to the heated verbal altercation with Garrett and the subsequent legal fight.
The 9th Circuit decision ruled that Dodge had submitted “sufficient evidence” to warrant a retrial on whether Garrett’s actions constituted a First Amendment retaliation case.
As for the two other defendants in the case – the Evergreen Public Schools district and the district’s Chief Human Resources Officer Jenae Gomes – the 9th Circuit ruled that they are in the clear. The 9th Circuit stated Dodge had failed to make the case that they too had violated Dodge’s rights.
Neither Dodge nor Garrett could be reached.
Michael McFarland, a Spokane lawyer, representing Evergreen and Gomes, said his clients are happy with the ruling.
“Gomes and EPS have from the outset of this litigation denied having taken any adverse action against Mr. Dodge,” McFarland said. “In fact, Ms. Gomes worked tirelessly to assist Mr. Dodge navigate his complicated employment and health benefit situation.”