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Appeals court rules for Evergreen teacher who wore MAGA hat, says it falls under protected speech

Federal panel found teacher had faced retaliation for 2019 action by district leaders

By , Columbian staff writer
Published:

The 9th U.S. Circuit Court of Appeals has ruled in favor of a former Evergreen Public Schools teacher, concluding that his action to wear a “Make America Great Again” hat to school was protected speech under the First Amendment.

Court documents showed that Eric Dodge, a longtime science teacher in Vancouver, brought the baseball cap with him to school on two occasions just before the start of the 2019-2020 school year. The first occasion was to a staff-only cultural sensitivity and racial bias training hosted by a professor from Washington State University.

After bringing the hat on the first day, Caroline Garrett, then principal of Wy’east Middle School, allegedly requested that Dodge needed to exercise “better judgment.” Dodge claimed that he was then “verbally attacked” by Garrett and other school employees after bringing the hat again, and that the retaliation against him for wearing the hat amounted to a violation of his First Amendment rights.

In its ruling on Dec. 29, the appeals panel concluded that Dodge’s action in wearing the hat was a message of public concern that he was conveying as a private citizen. They added that though other staff may have been outraged or upset at the symbolism of the hat, the district provided “no evidence of actual or tangible disruption to school operations had been presented.”

“That 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,” reads the opinion written by Judge Danielle J. Forrest. “Therefore, Principal Garrett’s asserted administrative interest in preventing disruption among staff did not outweigh plaintiff’s right to free speech.”

The final ruling found that Garrett indeed retaliated against Dodge, violating his First Amendment rights. Court records show that Garrett, who had worked in the district since 2010, resigned on April 2, 2020.

However, the appeals panel also found that both Evergreen Public Schools and chief human resources officer Janae Gomes had not taken any improper administrative action against Dodge. The district noted that in its response to the ruling.

“Ms. Gomes and EPS have from the outset of this litigation denied having taken any adverse action against Mr. Dodge,” said Mick McFarland, who represented Gomes and the school district. “In fact, Ms. Gomes worked tirelessly to assist Mr. Dodge navigate his complicated employment and health benefit situation. Both Ms. Gomes and EPS at all times acted in Mr. Dodge’s best interests.”

Background

Court documents show that just before the 2019-2020 school year, Eric Dodge had suffered a stroke. The two-day staff-only trainings prior to school opening were his first days back after he had completed his rehabilitation — also his first days working at Wy’east Middle School.

Records show that Dodge brought the hat with him to the meeting and placed it on the table in front of him. Garrett learned from other teachers that Dodge’s choice was upsetting given the context and substance of the meeting, and that the professor leading the session felt “intimidated and traumatized.”

Garrett then consulted Gomes on how to properly address the action with Dodge “without infringing or disrespecting anyone.” They concluded that Garrett should talk directly with Dodge and explain the reaction to his choice to “give him a heads-up that he was most likely inadvertently causing distress and give him an opportunity to respond to that.”

Dodge explained that he wore the hat to protect his scalp while outside and that he liked the messaging. Garrett responded that the hat was a symbol of hatred and bigotry, and claimed that Dodge denied that his action in presenting the hat at such a training was an attempt to “engender some kind of response.”

Dodge arrived the next day to another district event wearing the hat once again, prompting a greater response from teachers and administrators, including Garrett. The verbal altercation that followed led to a legal battle between the two sides.

The backlash he received from teachers at the meetings, Dodge alleges, “caused not only emotional devastation to plaintiff but also a recurrence of the debilitating stroke symptoms from which he had previously recovered.” He also wrote that the incident prevented him from continuing his employment with the district.

Dodge filed a complaint with the district’s human resources department, an investigation he claimed was handled in bad faith. An investigation from a third-party group called Clear Risk Solutions found that neither Dodge nor Garrett, in her response, had violated district policies. Dodge then appealed the decision to the school board, which also found he hadn’t violated district policy.

Dodge eventually filed a federal lawsuit against Garrett, Gomes and the school district in April 2020.

Michael Estok, one of Dodge’s attorneys, described the events to The Columbian in 2020 as “textbook violations” of harassment, intimidation, and bullying policies.

“People who are public employees enjoy certain First Amendment rights,” Estok said. “They shouldn’t be targeted or treated differently because they have certain political viewpoints. That’s what’s going on here.”

Editor’s note: Caroline Garrett’s name has been updated to reflect the correct spelling. The Columbian regrets the error. 

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