In Dodge v. Evergreen School Dist. #114, published December 29, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment for the defendants. The plaintiff teacher wore a red Make America Great Again hat to mandatory teacher training, taking the hat off when he entered the school where the training was held. The professor leading the training reported to the school's principal that she felt intimidated and traumatized by the hat. The principal also learned that the hat upset a few teachers at the training. She spoke with the school's HR officer to discuss what could be done. They agreed the best option was to talk to the teacher directly. She told the plaintiff that some people take the hat as a symbol of hatred and bigotry, and that while should could not ask him to stop wearing it, he should use "better judgment" in the future. The next day, the plaintiff attended another teacher training at a school in the district. He again wore the MAGA hat until he entered the building. The principal again contacted the HR director. They agreed the principal needed to set a "clear directive" that the plaintiff not have the hat in the training. Later that day, the teacher went to a training at his school, and left his hat in his truck. The principal again spoke with the plaintiff. According to the plaintiff, the principal swore during the conversation, called the plaintiff a homophobe, a bigot, and hateful; used profanity; told him that she did not want him wearing the hat; and said, "[N]ext time I see you with that hat, you need to have your union rep. Bring your rep because I'll have mine." The principal denied using profanity in the conversation. The plaintiff made an HR complaint about the principal. After investigation, the district found that the principal did not violate district policy. The HR officer informed the plaintiff that no further action would be taken on the complaint; but she granted the plaintiff's request for a transfer to another school. The plaintiff appealed to the school board. During a second investigation, the board gave the principal a choice of resigning as principal, accepting demotion, or facing disciplinary proceedings. She resigned. The plaintiff sued the district, the principal, and the HR officer for retaliation in violation of his First Amendment free speech rights. The district court granted summary judgment on the grounds that the principal's and HR officer's actions were protected by qualified immunity, and that the plaintiff had failed to establish that the district had ratified any unconstitutional actions.
The 9th Circuit reversed summary judgment as to the principal. The plaintiff stated a prima facie claim for first amendment retaliation: wearing the hat (with the political message it conveyed) was protected speech on a matter of public concern; he acted as a private citizen (rather than as part of his job duties) in wearing the hat to a teacher training; and while the principal "badmouthing" the plaintiff was not an adverse employment action, her threat that he needed to have his union rep if he wore the hat again raised a genuine issue of material fact over whether he faced an adverse employment action--a threat to his employment--for his expression. The court affirmed summary judgment for the HR officer, because it found no evidence the officer caused or set in motion a series of acts by others that she reasonably should know would cause constitutional injury. Nor were any of her actions reasonably likely to deter him from engaging in protected speech. The court then applied Pickering balancing to determine whether the principal established a legitimate administrative interest in preventing the plaintiff's speech that outweighed the plaintiff's First Amendment rights. While some of the training attendees may have been outraged or offended by the plaintiff's political expression, there was no evidence of actual or tangible disruption to school operations, beyond the inherent controversy of political speech. The appellate court next applied the second prong of qualified immunity analysis to the principal's acts: whether she violated clearly-established law. The court noted that because the Pickering analysis requires a fact-sensitive, context-specific balancing of competing interests, the law will rarely be sufficiently clearly established to preclude qualified immunity. But Supreme Court and 9th Circuit case law clearly establish that disagreement with a disfavored political stance or controversial viewpoint, by itself, is not a valid reason to curtail expression of that viewpoint at a public school, particularly where the only disruption was the effect the speech had on those who disagree with it because they disagree with it. This is therefore one of the rare Pickering cases where the violation of the First Amendment was clearly established. Finally, the court agreed with the district court that there was no evidence the district ratified the principal's conduct.
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