District Employees and the First Amendment

An interesting case recently came out of the Ninth Circuit Court of Appeals—Dodge v. Evergreen Sch. Dist., No. 21-35400 (9th Cir. Dec. 29, 2022). As a reminder, Illinois schools sit in the Seventh Circuit of Appeals, so while this was an important decision offering some guidance, it should not be read as binding on Illinois schools. At the lower court level, Defendants (School District) were granted summary judgment in an action brought pursuant to 42 U.S.C. § 1983. The teacher/Plaintiff appealed the ruling and the Ninth Circuit Court of Appeals affirmed in part and reversed in part the lower court’s ruling.

In this case a teacher brought a case of retaliation in violation of the First Amendment. The teacher alleged retaliation because he was informed by the school principal that he could not bring his Make America Great Again (“MAGA”) hat to teacher-only trainings. Disciplinary action was threatened should the teacher choose not to comply.  The teacher additionally filed a complaint within the School District against the principal. The complaint was investigated and no policy violation was found. This finding was appealed by the teacher. The school board ultimately affirmed the no policy violation finding.

The teacher sued his principal and the Human Resources Officer who investigated his complaint against the principal. The teacher additionally sued the District for ratification of the alleged unconstitutional conduct.

Allegations against the Principal:

The Ninth Circuit Court of Appeals found the teacher did engage in speech protected by the First Amendment. The MAGA hat was found to convey a message of public concern and the teacher was acting as a private citizen when attempting to express that message. The Court further found there was not a legitimate administrative interest in preventing the teacher’s speech that outweighed the teacher’s First Amendment rights. Specifically, the court found there might be individuals who were offended, but there was no evidence of any actual disruption. Potential offense by some employees was insufficient to override the teacher’s First Amendment rights.

Allegations against the District:

The Ninth Circuit Court of Appeals upheld the lower court’s grant of summary judgment with respect to the District. The Court held the teacher failed to establish there was a material dispute of fact with respect to whether or not the District ratified any of the principal’s unconstitutional conduct. The District followed its investigation policies and the District’s dismissal of the teacher’s complaint was not an actual approval of the principal’s conduct.

What this means for your District:

Considerations regarding employee’s First Amendment rights require specific and critical analysis. “Substantial disruption” – as a defense for school districts – does not appear to carry as much weight as it once did. The First Amendment is an intricate issue that is highly nuanced and dependent on the details of each case. Thorny First Amendment issues can become expensive and burdensome on Districts, we recommend you contact school attorney for advice when you encounter one.