ERIC DODGE V. EVERGREEN SCHOOL DISTRICT 114

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC DODGE, No. 21-35400

Plaintiff-Appellant, D.C. No. 3:20-

cv-05224-JLR

v.

EVERGREEN SCHOOL DISTRICT OPINION

#114, a public corporation;

CAROLINE GARRETT; JANAE

GOMES,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

James L. Robart, District Judge, Presiding

Argued and Submitted April 15, 2022

Seattle, Washington

Filed December 29, 2022

Before: Michael Daly Hawkins and Danielle J. Forrest,

Circuit Judges, and Jane A. Restani, * Judge.

*

The Honorable Jane A. Restani, Judge for the United States Court of

International Trade, sitting by designation.

2 DODGE V. EVERGREEN SCHOOL DISTRICT #114

Opinion by Judge Forrest

SUMMARY **

Civil Rights

The panel affirmed in part and reversed in part the

district court’s summary judgment in favor of defendants in

an action brought pursuant to 42 U.S.C. § 1983 by a teacher

who alleged retaliation in violation of the First Amendment

when a school principal told him that he could not bring his

Make America Great Again (MAGA) hat with him to

teacher-only trainings on threat of disciplinary action and

when the school board affirmed the denial of plaintiff’s

harassment complaint filed against the principal.

The panel first concluded that plaintiff was engaged in

speech protected by the First Amendment because the

undisputed facts demonstrated that his MAGA hat conveyed

a message of public concern, and he was acting as a private

citizen in expressing that message.

Addressing the claims against Principal Caroline Garret,

the panel next held that viewing the facts in the light most

favorable to plaintiff, at a minimum, there were triable issues

of fact regarding whether Principal Garrett, who had

authority over plaintiff’s employment, took adverse

employment action against him when she stated that the next

time plaintiff had his MAGA hat, they would have a meeting

in which he would need his union representative. Because it

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

DODGE V. EVERGREEN SCHOOL DISTRICT #114 3

was undisputed that plaintiff’s MAGA hat motivated

Principal Garret’s action, plaintiff submitted sufficient

evidence of a prima facie First Amendment retaliation claim

against her for purposes of summary judgment. The record

failed to establish, however, that defendant Jenae Gomes, the

school district’s Chief Human Resource Officer, took any

adverse employment action against plaintiff, and for this

reason, plaintiff’s First Amendment retaliation claim against

Gomes failed as a matter of law.

Analyzing whether Principal Garrett had a legitimate

administrative interest in preventing plaintiff’s speech that

outweighed his First Amendment rights, the panel

determined that while some of the training attendees may

have been outraged or offended by plaintiff’s political

expression, 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. Therefore, Principal Garrett’s asserted

administrative interest in preventing disruption among staff

did not outweigh plaintiff’s right to free speech. Moreover,

any violation of plaintiff’s First Amendment rights by

Principal Garrett was clearly established where long-

standing precedent held that concern over the reaction to

controversial or disfavored speech itself does not justify

restricting such speech. For these reasons, the panel reversed

the district court’s grant of summary judgment in favor of

Principal Garrett.

Addressing plaintiff’s claim against the Evergreen

School District, the panel held that the school board’s

dismissal of plaintiff’s administrative complaint on the

grounds that Principal Garrett did not violate any District

4 DODGE V. EVERGREEN SCHOOL DISTRICT #114

“policy or procedure,” was not an approval of her conduct or

the basis for it. Plaintiff failed to establish that a material

dispute of fact existed regarding whether the District ratified

any unconstitutional conduct by Principal Garrett. The

panel therefore affirmed the district court’s grant of

summary judgment in favor of the District.

COUNSEL

Gary W. Manca (argued), Talmadge/Fitzpatrick, Seattle,

Washington, for Plaintiff-Appellant.

Michael E. McFarland Jr. (argued), Evans Craven & Lackie

P.S., Spokane, Washington; Amber L. Pearce (argued),

Francis S. Floyd, and Brittany C. Ward, Floyd Pflueger &

Ringer P.S., Seattle, Washington; for Defendant-Appellee.

OPINION

FORREST, Circuit Judge:

The question in this case is whether the First Amendment

was violated when a principal told a teacher he could not

bring his Make America Great Again (MAGA) hat with him

to teacher-only trainings on threat of disciplinary action and

when the school board affirmed the denial of the teacher’s

harassment complaint filed against the principal. Plaintiff

Eric Dodge was a long-time teacher in the Evergreen School

District #114 (District) in Vancouver, Washington. Before

the 2019–2020 school year began, he attended two days of

teacher training and brought with him a MAGA hat. His

DODGE V. EVERGREEN SCHOOL DISTRICT #114 5

principal, Caroline Garrett, considered the hat inappropriate.

After consulting with the District’s Chief Human Resource

Officer Jenae Gomes, Principal Garrett told Dodge at the end

of the first day that he needed to exercise “better judgment.”

When Principal Garrett learned that Dodge brought his hat

with him again the second day, she called him a racist and a

homophobe, among other things, and said that he would

need to have his union representative present if she had to

talk to him about the hat again.

Dodge sued Principal Garrett, HR Officer Gomes, and

the District under 42 U.S.C. § 1983 for retaliating against

him for engaging in protected political speech in violation of

the First Amendment. The district court held that the

individual defendants were entitled to qualified immunity

and granted summary judgment in their favor. The district

court also granted summary judgment for the District,

concluding that Dodge failed to show a genuine issue of

material fact that the District was liable. Dodge appealed.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm

the district court’s grant of summary judgment for HR

Officer Gomes and the District, but we reverse and remand

as to Principal Garrett.

I. BACKGROUND

Because this case was resolved on defendants’ motions

for summary judgment, we view the facts in the light most

favorable to Dodge, the nonmovant. Rice v. Morehouse, 989

F.3d 1112, 1120 (9th Cir. 2021).

A. Dodge’s Interactions with Principal Garrett

Dodge worked as a teacher for the District for over 17

years. For the 2019–2020 school year, he was assigned to

teach at Wy’east Middle School (Wy’east) for the first time,

6 DODGE V. EVERGREEN SCHOOL DISTRICT #114

and his class was sixth grade science. The week before

school started, Dodge attended a cultural sensitivity and

racial bias training held at Wy’east presented by a professor

from Washington State University. There were

approximately 60 attendees at the training. Dodge wore his

MAGA hat up to the front doors of the school and then took

it off when he entered the building. During the training,

Dodge sat near the back of the room and placed his hat either

on the table in front of him or on top of his backpack; he did

not wear his hat during the training.

The professor leading the training saw Dodge’s hat and

complained to Principal Garrett after the training that she felt

intimidated and traumatized. Principal Garrett also learned

that Dodge’s hat upset a few teachers who attended the

training. One teacher had cried, and another found the hat

“threatening.” There is no allegation that Dodge did

anything with his hat during the training other than place it

near him with his other things, nor is there any allegation that

he did anything to interfere with or disrupt the training.

Principal Garrett called HR Officer Gomes to discuss

what could be done “without infringing or disrespecting

anyone”; they agreed that the “best option was to talk to

[Dodge] directly,” explain the “reaction” that the hat had

elicited, and “give him a heads-up that he was most likely

inadvertently causing distress and give him an opportunity

to respond to that.”

Later that afternoon, Principal Garrett spoke to Dodge in

his classroom. She asked Dodge why he wore the hat, and he

stated that he wore it to protect sunspots on his head. He also

explained that he “like[s] the message” behind the hat

because it “speaks to everybody” by saying “let’s all do it

the best that we can and be the best that we can be at

DODGE V. EVERGREEN SCHOOL DISTRICT #114 7

whatever it is that we do.” Principal Garrett responded that

“some people take [the hat] as a symbol of hate and bigotry”

and that while she could not ask him to stop wearing it, he

should use “better judgment” in the future. Dodge tried to

explain that he wore the hat to show that “[m]aybe they’re

not all bad,” but by the end of the conversation he understood

that Principal Garrett was effectively asking him not to wear

his MAGA hat at Wy’east. For her part, Principal Garrett

said that Dodge denied trying to “engender some kind of

response with the hat” by bringing it to a racial equity

training. She also stated that Dodge attempted to talk politics

during their conversation but that she “shut it down.”

The next day, Dodge attended another teacher training

that was held at Evergreen High School. He again wore his

MAGA hat before entering the building and then took it off

while he was inside. A teacher who was present at the first

day’s training saw the hat and texted Principal Garrett.

Principal Garrett again called HR Officer Gomes. This time

they agreed that Principal Garrett needed to “set a clear

directive with [Dodge]” to “not hav[e] the hat in the training

where it was causing the disruption to staff.”

When the training at Evergreen High School was over,

Dodge drove back to Wy’east for a third training that was

later that same day. This time, he left his MAGA hat in his

truck and did not bring it into the Wy’east building. When

the training was over, Dodge stayed behind to talk to

Principal Garrett about teaching classes other than science.

The parties disagree about what happened during this

conversation. Dodge alleges that when he approached

Principal Garrett she stated: “What is the fucking deal with

your hat?” She also called Dodge a “homophobe and a racist

and a bigot and hateful.” And when he denied wearing his

hat at Wy’east the second day, she called him a “liar” and

8 DODGE V. EVERGREEN SCHOOL DISTRICT #114

specified that she did not want him wearing the hat “period.”

Finally, Principal Garrett 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.” Principal Garrett disputes that she

mistreated Dodge, including by using profanity or raising

her voice, but she admits that she was frustrated and viewed

Dodge continuing to have his hat with him as

“insubordination.”

Later that night, Dodge emailed Principal Garrett stating

that he was “taken back by our conversation today when you

told me if I wear that hat again, that I better have a

representative with me.” He stated that her “unprovoked

attack” made him “sick to [his] stomach” and nervous, but

that he was “sorry for offending [her].” Principal Garrett

responded two days later recounting that he admitted to

wearing “the hat to purposefully provoke a reaction or

response from [his] colleagues.” She explained that her

reference to union representation only meant that “if we

needed to discuss [the MAGA hat] again, I would have

another administrator with me to take notes and you would

be invited to bring a representative.” Principal Garrett

forwarded Dodge’s email and her response to HR Officer

Gomes, who praised it as an “[e]xcellent response!”

B. The District’s Investigations of Principal Garrett

Dodge asked his union representative for advice after his

second encounter with Principal Garrett, and the

representative contacted the District. The representative was

informed that the District was not going to take any action

against Principal Garrett, and Dodge filed a harassment,

intimidation, and bullying (HIB) complaint against Principal

Garrett through the District’s online reporting system.

Dodge also requested a transfer to a different school.

DODGE V. EVERGREEN SCHOOL DISTRICT #114 9

Dodge’s HIB complaint was sent to HR Officer Gomes, who

initiated an investigation as required by District policy. HR

Officer Gomes contracted third-party liability investigator

Clear Risk Solutions (CRS) to perform the investigation and

determine whether Principal Garrett violated District

policies in her treatment of Dodge.

At some point during the investigation, HR Officer

Gomes received a public records request from a local news

agency related to Dodge’s HIB complaint. She told Dodge

that responding to the request may require her to disclose

information from his personnel file but that she would not

have to disclose the information if he withdrew his HIB

complaint. She also advised him that the investigation into

his allegations would proceed even if he withdrew his HIB

complaint. Dodge declined to withdraw his complaint.

CRS completed its investigation and prepared a

preliminary investigative report. The preliminary report

concluded that “Dodge was singled out because he wore a

‘Make America Great Again’ hat” and was “subjected to

negative treatment and denied his freedom of expression . . .

because of perceived stereotypes or political differences of

opinion.” The preliminary report also found that Dodge had

not violated any school policy by having his MAGA hat, that

Principal Garrett had allowed other types of political

messaging around the school, and that her reference to union

representation was “reasonably perceived by Mr. Dodge as

a threat of discipline.” Nonetheless, CRS’s preliminary

report also determined that Principal Garrett had not

technically violated any school policy because the District’s

antidiscrimination policy did not ban discrimination based

on political beliefs and the encounters between Dodge and

Principal Garrett did not rise to the level of harassment,

intimidation, or bullying.

10 DODGE V. EVERGREEN SCHOOL DISTRICT #114

HR Officer Gomes reviewed the preliminary report and

asked CRS to change some of the language before issuing its

final report. She was concerned that CRS’s conclusions

about violation of Dodge’s “freedom of expression” and him

being singled out for his political beliefs were outside the

scope of CRS’s task—to investigate whether Principal

Garrett had violated District policy. CRS removed the

language that HR Officer Gomes had concerns about.

Relying on the final report, HR Officer Gomes

determined that no policy violation had occurred, and she

wrote a letter to Dodge explaining that no further action

would be taken on his HIB complaint. But she also stated

that the District would transfer Dodge to a different school,

as he requested, and that the District would educate all

employees about engaging in political discourse without

violating constitutional rights. She further assured Dodge

that he would not be retaliated against for filing his HIB

complaint. Dodge appealed HR Officer Gomes’s denial of

his HIB complaint to the school board, and the school board

affirmed. However, aware of other complaints about

Principal Garrett lodged by school parents, the school board

ordered further investigation into whether Principal Garrett

had acted professionally in her interactions with Dodge.

During this second investigation, the school board informed

Principal Garrett that it had a “strong belief” that her

conversations with Dodge were not as she had represented

in addition to concerns about her “professionalism which

bring credibility into question.” Ultimately, the school board

gave Principal Garrett the choice of resigning as principal

and accepting a demotion or facing disciplinary proceedings.

She resigned at the end of the school year.

DODGE V. EVERGREEN SCHOOL DISTRICT #114 11

C. District Court Proceedings

Dodge sued under 42 U.S.C. § 1983, claiming that

Principal Garrett and HR Officer Gomes retaliated against

him for having his MAGA hat in violation of his First

Amendment right to free speech. He also sued the District,

claiming that the school board ratified the unconstitutional

actions of the individual defendants by affirming the denial

of his HIB complaint. 1 The district court granted summary

judgment against all of Dodge’s claims. It concluded that

Principal Garrett and HR Officer Gomes were protected by

qualified immunity because it was not clearly established

that their actions violated the Constitution. It also concluded

that Dodge failed to present evidence that the school board

ratified any unconstitutional actions by Principal Garrett or

HR Officer Gomez and, even if it had, there was not a

sufficient causal connection between the school board’s

decision to affirm the denial of Dodge’s HIB complaint and

Dodge’s injury. Dodge timely appealed.

II. DISCUSSION

We review de novo the district court’s summary

judgment rulings, including its determinations regarding

qualified immunity. Hughes v. Rodriguez, 31 F.4th 1211,

1218 (9th Cir. 2022).

A. Individual Defendants

The district court granted the individual defendants

summary judgment, concluding that they were protected by

qualified immunity. In reviewing this decision, we must

analyze whether the individual defendants violated “clearly

1

Dodge sues Principal Garrett and HR Officer Gomes in their individual

capacities and the District under a municipal theory of liability set forth

in Monell v. Department of Social Services, 436 U.S. 658 (1978).

12 DODGE V. EVERGREEN SCHOOL DISTRICT #114

established statutory or constitutional rights of which a

reasonable person would have known.” Horton by Horton v.

City of Santa Maria, 915 F.3d 592, 599 (9th Cir. 2019)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

This is a well-known, two-part analysis: (1) whether a

protected right was violated, and (2) whether that right was

clearly established at the time of the violation. See, e.g.,

Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts have

discretion to determine in which order to address these

inquiries “in light of the circumstances in the particular case

at hand.” Id. at 236. Although the district court analyzed only

the second part of this test, whether any constitutional

violation was clearly established, we address both inquiries.

1. First Amendment Violation

To establish a prima facie First Amendment retaliation

claim, the plaintiff must prove that “(1) []he engaged in

protected speech; (2) the defendants took an ‘adverse

employment action’ against h[im]; and (3) h[is] speech was

a ‘substantial or motivating’ factor for the adverse

employment action.” Howard v. City of Coos Bay, 871 F.3d

1032, 1044 (9th Cir. 2017) (quoting Thomas v. City of

Beaverton, 379 F.3d 802, 808 (9th Cir. 2004)). If the plaintiff

establishes a prima facie case, “the burdens of evidence and

persuasion . . . shift to the Defendants to show that the

balance of interests justified their adverse employment

decision.” Eng v. Cooley, 552 F.3d 1062, 1074 (9th Cir.

2009). That is, a defendant can avoid liability for retaliation

by showing that it had a legitimate administrative interest in

suppressing the speech that outweighed the plaintiff’s First

DODGE V. EVERGREEN SCHOOL DISTRICT #114 13

Amendment rights. Pickering v. Bd. of Ed., 391 U.S. 563,

568 (1968). 2

a. Protected Speech

Whether a public employee like Dodge has engaged in

speech protected by the First Amendment breaks down to

two inquiries: (1) whether he “spoke on a matter of public

concern,” and (2) whether he “spoke as a private citizen or

public employee.” Johnson v. Poway Unified Sch. Dist., 658

F.3d 954, 961 (9th Cir. 2011) (quoting Eng, 552 F.3d at

1070).

i. Matter of Public Concern

Speech addresses an issue of public concern “when it can

‘be fairly considered as relating to any matter of political,

social, or other concern to the community,’ or when it ‘is a

subject of legitimate news interest.’” Lane v. Franks, 573

U.S. 228, 241 (2014) (quoting Snyder v. Phelps, 562 U.S.

443, 453 (2011)). What constitutes public concern is

“defined broadly,” Ulrich v. City & County of San

Francisco, 308 F.3d 968, 978 (9th Cir. 2002), based on the

“content, form, and context of a given statement, as revealed

by the whole record,” Johnson v. Multnomah County, 48

F.3d 420, 422 (9th Cir. 1995) (quoting Connick v. Myers,

461 U.S. 138, 147–48 (1983)). While no single factor is

dispositive, “content is the most important.” Thomas, 379

F.3d at 810.

2

An employer also is not liable for First Amendment retaliation if it

proves that it would have taken the adverse employment action absent

the protected speech. See Howard, 871 F.3d at 1046–48. This rule is not

at issue here, however, because neither Principal Garrett nor HR Officer

Gomes dispute that any adverse employment action that occurred was

related to Dodge’s MAGA hat.

14 DODGE V. EVERGREEN SCHOOL DISTRICT #114

Here, Dodge’s speech was his display of Donald

Trump’s presidential campaign slogan on a red hat. The

content of this speech is quintessentially a matter of public

concern. The messages of candidates for public office are not

only newsworthy; they inherently relate to the “political,

social, or other concern to the community.” Lane, 573 U.S.

at 241 (internal quotation marks and citation omitted); cf.

Rankin v. McPherson, 483 U.S. 378, 386 (1987)

(“addressing the policies of the President’s administration”

“plainly deal[s] with a matter of public concern.”). Indeed,

Principal Garrett and others viewed Dodge’s hat as a

comment on issues such as immigration, racism, and bigotry,

which are all matters of public concern.

The defendants’ suggestion that Dodge was not

conveying a political message because he wore his hat to

protect his skin ignores the reality that both can be true—he

wore his hat as protection, and he chose this hat because of

the message that it conveyed. The suggestion that Dodge did

not intend to communicate a message with his hat is also

belied by his statements that he used the hat to “show people

who [he was],” he liked the message behind “Make America

Great Again” because it was “kind of who [he is],” and he

owned the hat because he “show[s] support for Donald

Trump.” And regardless of Dodge’s intent, the MAGA hat

has an obvious political nature. See Alpha Energy Savers,

Inc. v. Hansen, 381 F.3d 917, 925 (9th Cir. 2004).

Defendants also suggest that the context of Dodge’s

speech—a teacher-only training with a limited audience—

undermines the conclusion that any message Dodge was

conveying was a matter of public concern. However, a

government employee does not lose the right to speak out

about issues of public concern in forums closed to the

general public. Connick, 461 U.S. at 148 n.8; Thomas, 379

DODGE V. EVERGREEN SCHOOL DISTRICT #114 15

F.3d at 810 (“Because content is the most important factor,

we have concluded that speech about a matter of public

concern may be protected even when made in a private

context.”). Considering the content, form, and context of

Dodge’s speech, we conclude that it was a matter of public

concern. Johnson, 48 F.3d at 422.

ii. Public vs. Private Speech

The second inquiry—whether Dodge was speaking as a

private citizen or a public employee—depends on the “scope

and content of [his] job responsibilities.” Poway Unified Sch.

Dist., 658 F.3d at 966 (quoting Eng, 552 F.3d at 1071). A

person speaks in a personal capacity if he “‘had no official

duty’ to make the questioned statements, or if the speech was

not the product of ‘perform[ing] the tasks [he] was paid to

perform.’” Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546

F.3d 1121, 1127 n.2 (9th Cir. 2008) (citations omitted).

Here, Dodge had no official duty to wear the MAGA hat,

and it was not required to perform his job. Nor did he wear

the hat in school with students. That distinguishes this case

from other cases involving speech in schools where the

speech was reasonably viewed by students and parents as

officially promoted by the school. See Poway Unified Sch.

Dist., 658 F.3d at 967–68 (large religious banners hung up

in classroom); Peloza v. Capistrano Unified Sch. Dist., 37

F.3d 517, 519–20 (9th Cir. 1994) (teaching creationism over

evolutionism). Where Dodge was not taking “advantage of

his position to press his particular views upon the

impressionable and ‘captive’ minds before him,” Poway

Unified Sch. Dist., 658 F.3d at 968, but rather was displaying

a message on a personal item while attending a teacher-only

training, we have little trouble concluding that he was

16 DODGE V. EVERGREEN SCHOOL DISTRICT #114

engaging in expression as a private citizen, not a public

employee.

Because the undisputed facts demonstrate that Dodge’s

MAGA hat conveyed a message of public concern and he

was acting as a private citizen in expressing that message,

we conclude that Dodge was engaged in speech protected by

the First Amendment.

b. Adverse Employment Action

The second element of a prima facie First Amendment

retaliation claim is an adverse employment action. 3 To

determine if an adverse employment action occurred for

purposes of First Amendment retaliation, we apply the

“reasonably likely to deter” test. Greisen v. Hanken, 925

F.3d 1097, 1113 (9th Cir. 2019). Under this test, the plaintiff

must prove that the employer’s action was “reasonably likely

to deter [them] from engaging in constitutionally protected

speech.” Id. (quoting Coszalter v. City of Salem, 320 F.3d

968, 970 (9th Cir. 2003)). The plaintiff need not have

suffered a tangible loss. See Brodheim v. Cry, 584 F.3d 1262,

1269–70 (9th Cir. 2009). The purpose of protection against

retaliation for engaging in protected speech is to stop

“actions by a government employer that ‘chill the exercise

of protected’ First Amendment rights.” Dahlia v. Rodriguez,

735 F.3d 1060, 1078 (9th Cir. 2013) (en banc) (quoting

3

Principal Garrett and HR Officer Gomes assert that Dodge’s appeal fails

because he did not argue that he suffered an adverse employment action

in his opening brief. We reject this argument because the district court

did not address whether Dodge suffered an adverse employment action

in granting summary judgment. Dodge did not waive the ability to

oppose defendants’ argument that he suffered no adverse employment

action by failing to proactively anticipate this argument in his opening

brief. Warmenhoven v. NetApp, Inc., 13 F.4th 717, 729 (9th Cir. 2021).

DODGE V. EVERGREEN SCHOOL DISTRICT #114 17

Coszalter, 320 F.3d at 974–75). Thus, the key question is

whether the retaliatory activity “would ‘chill or silence a

person of ordinary firmness’ from continuing to speak out.”

Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 n.1 (9th Cir.

2010) (quoting Mendocino Env’t Ctr. v. Mendocino County,

192 F.3d 1283, 1300 (9th Cir. 1999)). The “precise nature of

the retaliation is not critical to the inquiry.” Coszalter, 320

F.3d at 974.

Under this test we have recognized that “[v]arious kinds

of employment actions may have an impermissible chilling

effect,” including “minor acts of retaliation,” Dahlia, 735

F.3d at 1079 (citing Coszalter, 320 F.3d at 975), and

“[i]nformal measures, such as ‘the threat of invoking legal

sanctions and other means of coercion, persuasion, and

intimidation.’” Mulligan v. Nichols, 835 F.3d 983, 989 n.5

(9th Cir. 2016) (citation omitted). We have also recognized

that the insinuation or threat that “some form of punishment

or adverse regulatory action” may follow can also chill a

person from speaking and violate the First Amendment.

Greisen, 925 F.3d at 1114 (quoting Brodheim, 584 F.3d at

1270); Coszalter, 320 F.3d at 976–77 (even a “threat of

disciplinary action” may constitute adverse employment

action for purposes of First Amendment retaliation).

Because Dodge has alleged that Principal Garrett and HR

Officer Gomes took separate retaliatory actions against him,

we address the allegations against them individually.

i. Principal Garrett

Dodge contends that Principal Garrett’s entire course of

conduct related to his MAGA hat was an adverse

employment action because her actions were reasonably

likely to deter him (indeed, her goal was to deter him) from

engaging in protected speech. Viewing the facts in the light

18 DODGE V. EVERGREEN SCHOOL DISTRICT #114

most favorable to Dodge, we agree that, at a minimum, there

are triable issues of fact regarding whether Principal Garrett

took adverse employment action against him.

The first day, Principal Garrett, who was Dodge’s

supervisor, told him that he needed to use “better judgment”

and not have his MAGA hat at Wy’east. The second day, she

called him a racist, a bigot, a homophobe, and a liar, and

swore at him for having his MAGA hat with him again. By

itself, such criticism or “bad-mouthing” does not constitute

an adverse employment action sufficient for a First

Amendment retaliation claim. See, e.g., Nunez v. City of Los

Angeles, 147 F.3d 867, 875 (9th Cir. 1998). Principal Garrett

also has First Amendment rights after all. See id. (“It would

be the height of irony, indeed, if mere speech, in response to

speech, could constitute a First Amendment violation.”). But

Principal Garrett went beyond criticizing Dodge’s political

views. She suggested that disciplinary action could occur if

she saw Dodge with his hat again by referencing the need for

union representation: “The next time I see you with that hat,

you need to have your union rep. Bring your rep because I’ll

have my own.” It is hardly controversial that threatening a

subordinate’s employment if they do not stop engaging in

protected speech is reasonably likely to deter that person

from speaking. See Brodheim, 584 F.3d at 1270; Dahlia, 735

F.3d at 1079.

Principal Garrett claims that she was “[s]imply advising

Mr. Dodge of his right to have a representative at any future

conversations about the hat,” which is his right under his

collective bargaining agreement. This characterization

undersells the import and implications that a reasonable

employee would attribute to such a statement. “The power

of a threat lies not in any negative actions eventually taken,

but in the apprehension it creates in the recipient of the

DODGE V. EVERGREEN SCHOOL DISTRICT #114 19

threat.” Brodheim, 584 F.3d at 1271. For example, we have

held that a prison official’s statement “to be careful what you

write, req[u]est on this form,” written on a grievance denial

form returned to a prisoner created a genuine issue of fact

regarding whether that statement was an adverse action

where there “were a number of things that [the prison

official] could have done if [the prisoner] failed to comply

with his warning that would have had a negative effect.” Id.

at 1265–66, 1270. Although there was no “explicit, specific

threat of discipline or transfer,” we reasoned that “a

statement that ‘warns’ a person to stop doing something

carries the implication of some consequence of a failure to

heed that warning.” Id. at 1270.

Here, Dodge’s principal, who had authority over his

employment, stated that the next time he had his MAGA hat,

they would have a meeting in which he would need his union

representative. The purpose of summary judgment is to

determine if there are material factual disputes, not to resolve

them. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). At a minimum, there is a genuine issue of fact

regarding whether Dodge reasonably interpreted Principal

Garrett’s statement as a threat against his employment.

While Principal Garrett also had First Amendment rights,

she may not use her position of authority over Dodge “as a

means to retaliate for [his] expression.” Coszalter, 320 F.3d

at 974.

ii. HR Officer Gomes

Dodge argues that HR Officer Gomes took adverse

action against him by counseling Principal Garrett on how to

respond to his MAGA hat and in her subsequent

investigation and dismissal of his HIB complaint against

Principal Garrett. Regarding HR Officer Gomes’s advice to

20 DODGE V. EVERGREEN SCHOOL DISTRICT #114

Principal Garrett, the record does not reflect that she

“cause[d]” or otherwise “set[] in motion a series of acts by

others which [she] kn[ew] or reasonably should know would

cause others to inflict the constitutional injury.” Dahlia, 735

F.3d at 1078 n.22 (quoting Gilbrook v. City of Westminster,

177 F.3d 839, 854 (9th Cir. 1999)). The record does not

indicate that HR Officer Gomes counselled Principal Garrett

to yell or swear at Dodge or accuse him of having

discriminatory beliefs. But even if she had, that also would

have been insufficient “bad-mouthing.” See Coszalter, 320

F.3d at 975–76. Dodge similarly has not put forth evidence

establishing that HR Officer Gomes counseled Principal

Garrett to tell Dodge that he would need a union

representative if his MAGA hat came up again or to make

any reference to involving union representation.

Dodge points to a laundry-list of HR Officer Gomes’s

separate conduct that he contends qualify as adverse

employment actions, including (1) handling the

investigation of his HIB complaint and failing to recuse

herself as a potential witness, (2) meeting with Principal

Garrett during this investigation, (3) requesting CRS to

remove discussion of Dodge’s “freedom of expression” from

its final report, (4) presenting CRS’s findings to the school

board, (5) trying to induce Dodge to drop his HIB complaint

when she informed him about the media’s public records

request, (6) denying his request to remain on paid

administrative leave while he appealed her denial of his HIB

complaint to the school board, and (7) refusing to recuse

herself from other leave and benefits requests that he made.

It is understandable why Dodge was concerned about HR

Officer Gomes being involved in the investigation of his

HIB complaint against Principal Garrett given HR Officer

Gomes’s involvement in the events leading up to his

DODGE V. EVERGREEN SCHOOL DISTRICT #114 21

complaint. But the flaw in his adverse-employment-action

argument against HR Officer Gomes is that he does not

explain how her actions were reasonably likely to deter him

from engaging in protected speech. At least some of her

conduct may have encouraged a reasonable employee to

continue to engage in protected speech. The investigation

that she oversaw and presented to the school board

determined that Dodge did not violate school policy by

having his MAGA hat. And while she told Dodge that he

could drop his HIB complaint to avoid having to respond to

the public records request, she also stated that the

investigation of his allegations against Principal Garrett

would continue even if he dropped his complaint. The record

does not indicate that her statements about the public records

request insinuated any threat against him or his employment.

It is also worth noting that HR Officer Gomes approved

Dodge’s request to be transferred to a different school and

committed to having District employees trained on freedom

of expression.

In sum, the record fails to establish that HR Officer

Gomes took any adverse employment action against Dodge,

and for this reason, his First Amendment retaliation claim

against her fails as a matter of law.

c. Substantial or Motivating Factor

The last element that Dodge must prove to establish a

First Amendment retaliation claim is that his protected

speech motivated any adverse employment action taken

against him. Howard, 871 F.3d at 1044–45. We do not

address HR Officer Gomes as relates to this issue because

she did not take any adverse employment actions against

22 DODGE V. EVERGREEN SCHOOL DISTRICT #114

Dodge. 4 As for Principal Garrett, it is undisputed that

Dodge’s MAGA hat motivated her actions. Thus, Dodge has

submitted sufficient evidence of a prima facie First

Amendment retaliation claim against Principal Garrett for

purposes of summary judgment.

d. Pickering Balancing

Next, we must analyze whether Principal Garrett

established that she had a legitimate administrative interest

in preventing Dodge’s speech that outweighed Dodge’s First

Amendment rights. Pickering, 391 U.S. at 568. In Pickering,

the Supreme Court instructed that courts must conduct “‘a

fact-sensitive and deferential weighing of the government’s

legitimate interests’ as employer against the First

Amendment rights of the employee.” Riley’s Am. Heritage

Farms v. Elsasser, 32 F.4th 707, 720 (9th Cir. 2022) (citation

omitted). “[P]romoting workplace efficiency and avoiding

workplace disruption” is a valid government interest that can

justify speech restrictions. Hufford v. McEnaney, 249 F.3d

1142, 1148 (9th Cir. 2001).

Whether speech disrupted the workplace is fact-specific

and depends on “‘the manner, time, and place in which’ the

employee’s speech took place.” Clairmont, 632 F.3d at 1107

(citation omitted). Speech is disruptive only when there is an

“‘actual, material and substantial disruption,’ or [there are]

4

Even if we were to analyze this element as to HR Officer Gomes, the

record reflects that she did not depart from District policies in overseeing

the investigation of Dodge’s HIB complaint or in handling Dodge’s

complicated medical and administrative leave benefits requests. This

weighs against a finding of retaliatory animus. See, e.g., Vill. of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977)

(compliance with preestablished policies weighs against a finding of

retaliatory intent).

DODGE V. EVERGREEN SCHOOL DISTRICT #114 23

‘reasonable predictions of disruption’ in the workplace.”

Robinson v. York, 566 F.3d 817, 824 (9th Cir. 2009)

(citations omitted); see also Keyser v. Sacramento City

Unified Sch. Dist., 265 F.3d 741, 749 n.2 (9th Cir. 2001).

Disruption “impairs discipline by superiors or harmony

among co-workers, has a detrimental impact on close

working relationships for which personal loyalty and

confidence are necessary, or impedes the performance of the

speaker’s duties or interferes with the regular operation of

the enterprise.” Nunez v. Davis, 169 F.3d 1222, 1228 (9th

Cir. 1999) (quoting Rankin, 483 U.S. at 388). Speech that

outrages or upsets co-workers without evidence of “any

actual injury” to school operations does not constitute a

disruption. Settlegoode v. Portland Pub. Schs., 371 F.3d 503,

514 (9th Cir. 2004). Other relevant considerations in the

school context are whether “students and parents have

expressed concern that the plaintiff’s conduct has disrupted

the school’s normal operations, or has eroded the public trust

between the school and members of its community.” Riley’s

Am. Heritage Farms, 32 F.4th at 725.

The government’s burden in proving disruption “varies

with the content of the speech.” Hyland v. Wonder, 972 F.2d

1129, 1139 (9th Cir. 1992). “The more tightly the First

Amendment embraces the speech the more vigorous a

showing of disruption must be made.” Id.; see also Connick,

461 U.S. at 150–52. Speech about matters of public concern

“occupies the ‘highest rung of the hierarchy of [F]irst

[A]mendment values.’” Allen v. Scribner, 812 F.2d 426, 430

(9th Cir. 1987) (quoting NAACP v. Claiborne Hardware

Co., 458 U.S. 886, 913 (1982)). Thus, employers must make

a “‘stronger showing’ of disruption when the speech deal[s]

. . . directly with issues of public concern.” Robinson, 566

F.3d at 826 (quoting McKinley v. City of Eloy, 705 F.2d

24 DODGE V. EVERGREEN SCHOOL DISTRICT #114

1110, 1115 (9th Cir. 1983)). Moreover, “[t]he First

Amendment affords the broadest protection to . . . political

expression,” Buckley v. Valeo, 424 U.S. 1, 14 (1976), and “a

ban on wearing any ‘political badge, political button, or

other political insignia’ plainly restricts a form of expression

within the protection of the First Amendment,” Minn. Voters

All. v. Mansky, 138 S. Ct. 1876, 1885 (2018); see also Ariz.

Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S.

721, 734 (2011) (the First Amendment “‘has its fullest and

most urgent application’ to speech uttered during a campaign

for political office.” (quoting Eu v. San Francisco County

Democratic Cent. Comm., 489 U.S. 214, 223 (1989))).

Here, Principal Garrett contends that her interest in

preventing disruption among the staff at Wy’east

outweighed Dodge’s right to free speech. Given the nature

of Dodge’s speech, she has a particularly heavy burden

under the Pickering test. Principal Garrett points to evidence

that teachers and staff felt “‘intimidated,’ ‘shock[ed],’

‘upset,’ ‘angry,’ ‘scared,’ ‘frustrated,’ and ‘didn’t feel safe’”

after learning about Dodge’s MAGA hat. But there is no

evidence that Dodge’s hat “interfered with h[is] ability to

perform h[is] job or the regular operation” of the school,

Nunez, 169 F.3d at 1229, or that its presence injured any of

the school’s legitimate interests “beyond the ‘disruption that

necessarily accompanies’ [controversial] speech,” Keyser,

265 F.3d at 749 (quoting Johnson, 48 F.3d at 427).

There is no evidence that Dodge or his hat interfered with

the teacher training sessions. Dodge sat in the back of the

room quietly during both trainings with the hat either on his

table or on his backpack beside him. From the approximately

60 attendees present, fewer than five people complained,

including the first presenter who was not a District employee

and a teacher who did not work at Wy’east. And regardless,

DODGE V. EVERGREEN SCHOOL DISTRICT #114 25

both trainings were completed without incident. Nor did

Dodge’s expression cause any disruption to school. He had

his hat at teachers-only trainings where students and parents

were not present, and he told Principal Garrett that he would

not wear it “in class, around parents, or in front of kids.” See

Riley’s Am. Heritage Farms, 32 F.4th at 726 (“[W]e give

less weight to the government’s concerns about the

disruptive impact of speech outside the workplace

context.”). No students or parents ever complained about

Dodge’s MAGA hat.

In sum, while some of the training attendees may have

been outraged or offended by Dodge’s political expression,

no evidence of actual or tangible disruption to school

operations has been presented. 5 Political speech is the

quintessential example of protected speech, and it is

inherently controversial. See Nat’l Ass’n for Gun Rights,

Inc., v. Mangan, 933 F.3d 1102, 1111–12 (9th Cir. 2019);

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347

(1995). 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. Therefore, Principal Garrett’s

asserted administrative interest in preventing disruption

among staff does not outweigh Dodge’s right to free speech.

For all these reasons, Dodge has presented sufficient

5

As for Principal Garrett’s view that Dodge was being insubordinate, the

record establishes that his conduct did not justify restricting his speech.

See Nunez, 169 F.3d at 1228 (disagreeing with a supervisor on a “matter

of public concern” was not insubordination); cf. Weisbuch v. County of

Los Angeles, 119 F.3d 778, 782 (9th Cir. 1997) (insubordination was a

valid concern where a high-level employee “insist[ed] on a mode of

administering his department contrary to his supervisor’s policies”).

26 DODGE V. EVERGREEN SCHOOL DISTRICT #114

evidence to create a triable issue regarding whether Principal

Garrett violated his constitutional rights.

2. Clearly Established Violation

Because Dodge has presented sufficient evidence from

which a jury could find a constitutional violation, we turn to

the second part of the qualified immunity analysis: whether

the constitutional right that Principal Garrett violated was

clearly established at the time of the violation. The district

court found that Principal Garrett was entitled to qualified

immunity because it was not clearly established that “the

outcome of the Pickering balance so clearly favored [Dodge]

that it would have been patently unreasonable for the school

officials to conclude that the First Amendment did not

protect his speech.” Brewster v. Bd. of Educ. of Lynwood

Unified Sch. Dist., 149 F.3d 971, 980 (9th Cir. 1998). On

appeal, Principal Garrett also focuses on the Pickering

element of First Amendment retaliation. Consequently, we

analyze only whether it was clearly established that the

Pickering balancing test favored Dodge.

To be “clearly established,” “existing precedent must

have placed the statutory or constitutional question beyond

debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (citation

omitted). We are not to frame the issues presented at “too

high a level of generality,” and must “adequately adjust[] to

account for [Principal Garrett]’s interests in avoiding

disruption to [the school’s] operations under the Pickering

test.” Riley’s Am. Heritage Farms, 32 F.4th at 733 n.12.

Thus, it would be inappropriate to frame the right here as

“the general right to be free from retaliation for one’s

speech.” Reichle v. Howards, 566 U.S. 658, 665 (2012).

Instead, we must define the rights implicated here at a level

DODGE V. EVERGREEN SCHOOL DISTRICT #114 27

commensurate with the specific factual and legal context of

the case. See id.

As the Pickering analysis “requires a fact-sensitive,

context-specific balancing of competing interests, the law

regarding public-employee free speech claims will ‘rarely, if

ever, be sufficiently clearly established to preclude qualified

immunity.’” Brewster, 149 F.3d at 980 (quoting Moran v.

Washington, 147 F.3d 839, 847 (9th Cir. 1998)).

Nevertheless, a plaintiff need not produce “a case directly on

point.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

Instead, it is enough to show that “‘[t]he contours of [a] right

[are] sufficiently clear’ that every ‘reasonable official would

[have understood] that what he is doing violates that right.’”

Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). Put differently, “a general constitutional rule

already identified in the decisional law may apply with

obvious clarity to the specific conduct in question, even

though ‘the very action in question has [not] previously been

held unlawful.’” United States v. Lanier, 520 U.S. 259, 271

(1997) (quoting Anderson, 483 U.S. at 640). “[O]fficials can

still be on notice that their conduct violates established law

even in novel factual circumstances” if the “case involve[s]

‘mere application of settled law to a new factual

permutation.’” Eng, 552 F.3d at 1076 (quoting Porter v.

Bowen, 496 F.3d 1009, 1026 (9th Cir. 2007)).

Applying these principles, we ask whether it is patently

unreasonable for a school official to believe that she could

lawfully threaten a subordinate’s employment because he

brought a political campaign hat to teacher-only trainings

after several teachers complained about the political

messaging they attributed to the hat. This case presents one

of the rare occasions where the Pickering balancing test so

clearly cuts in Dodge’s favor that the violation of his First

28 DODGE V. EVERGREEN SCHOOL DISTRICT #114

Amendment rights was clearly established. In other words,

it was patently unreasonable for Principal Garrett to believe

that she could restrict Dodge’s speech to quell what was, in

reality, nothing more than the natural effect that disfavored

political speech often has on those with different viewpoints.

This is so even though there is not a prior case addressing

the precise facts presented here because there are several

cases that set forth clearly established rules that apply with

“obvious clarity to the specific conduct in question,”

especially in light of the arguments that Principal Garrett

raises. Lanier, 520 U.S. at 271.

We start our analysis with the context that gave rise to

the Pickering balancing test. In 1968, a public-school teacher

wrote a letter to the local paper criticizing certain budgetary

actions of the school board. Pickering, 391 U.S. at 564. The

school board fired the teacher after determining that the

“publication of the letter was ‘detrimental to the efficient

operation and administration of the schools of the district’”

and that the “interests of the schools require(d) (his

dismissal).” Id. at 564–65. In the first application of the

Pickering balancing test, the Supreme Court held that the

First Amendment interests of the teacher outweighed the

administrative interests of the school. Id. at 573. The Court

emphasized that there was no evidence that the letter had

affected the community as a whole or the administration of

the school system. Id. at 567. Instead, the letter “reflect[ed]

rather a difference of opinion between [the teacher] and the

Board as to the preferable manner of operating the school

system” that would “not normally have any necessary impact

on the actual operation of the schools, beyond its tendency

to anger the Board.” Id. at 571. This was not enough to

justify restricting the speech as the letter did not “impede[]

the teacher’s proper performance of his daily duties in the

DODGE V. EVERGREEN SCHOOL DISTRICT #114 29

classroom or . . . interfere[] with the regular operation of the

schools generally.” Id. at 572–73.

The year after Pickering, the Supreme Court decided

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503

(1969). In that case, students were suspended for wearing

armbands to protest the United States’ ongoing involvement

in the Vietnam War. Id. at 504. The trial court held that the

school authorities acted lawfully because they were

motivated by “their fear of a disturbance from the wearing

of the armbands.” Id. at 508. The Court disagreed,

concluding that the “record fails to yield evidence that the

school authorities had reason to anticipate that the wearing

of the armbands would substantially interfere with the work

of the school or impinge upon the rights of other students.”

Id. at 509. Instead, “the action of the school authorities

appears to have been based upon an urgent wish to avoid the

controversy which might result from the expression, even by

the silent symbol of armbands, of opposition to this Nation’s

part in the conflagration in Vietnam.” Id. at 510. The Court

explicitly stated that for “school officials to justify

prohibition of a particular expression of opinion, it must be

able to show that its action was caused by something more

than a mere desire to avoid the discomfort and

unpleasantness that always accompany an unpopular

viewpoint.” Id. at 509. The Court noted that the school did

not “prohibit the wearing of all symbols of political or

controversial significance” because “students in some of the

schools wore buttons relating to national political

campaigns”; the armbands were “singled out for

prohibition.” Id. at 510–11. The Court concluded that

“[c]learly, the prohibition of expression of one particular

opinion, at least without evidence that it is necessary to avoid

30 DODGE V. EVERGREEN SCHOOL DISTRICT #114

material and substantial interference with schoolwork or

discipline, is not constitutionally permissible.” Id. at 511.

More recently, we have addressed a school’s ability to

curtail speech under the guise of protecting administrative

interests. In Settlegoode v. Portland Pub. Schs., a teacher

was hired to teach physical education to students with

disabilities. 371 F.3d 503, 507 (9th Cir. 2004). Finding the

equipment and materials provided insufficient for the

students, she complained and wrote letters to her direct

supervisors and to the superintendent. Id. at 507–08. When

she subsequently received negative performance reviews

and her contract was not renewed, she claimed First

Amendment retaliation. Id. at 509. A jury found for the

teacher, but the trial judge granted the defendants’ Rule 50

motion asserting qualified immunity and dismissed the case.

Id. We reversed, explaining that “[w]hen balancing interests

under the [Pickering] test, defendants must show ‘actual

injury to . . . legitimate interests’ beyond the ‘disruption that

necessarily accompanies’ such speech.” Id. at 513 (citation

omitted). We noted that the school district “presented very

little evidence of disruption” as the teacher had sent only

internal letters and discussed her grievances with supervisors

without making any public statements. Id. at 514. While co-

workers testified that they were “hurt,” “upset,” “furious,”

and “outraged” by the letters, we found there was no

evidence of “actual injury to the department,” id., such as

“impaired discipline or control by superiors, conflicts

between co-workers or interference with [her] performance

of her duties.” Id. at 515–16.

DODGE V. EVERGREEN SCHOOL DISTRICT #114 31

Pickering, Tinker, and Settlegoode, along with several

other cases, 6 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. Moreover, these cases each

considered restrictions on disfavored or unpopular speech in

the name of preventing disruption, when the only disruption

was the effect controversial speech has on those who

disagree with it because they disagree with it. Although

those cases did not involve a MAGA hat, the principles that

6

This principle has arisen again and again. See e.g., Rankin, 483 U.S. at

384 (“Vigilance is necessary to ensure that public employers do not use

authority over employees to silence discourse, not because it hampers

public functions but simply because superiors disagree with the content

of the employees’ speech.”); Nunez, 169 F.3d at 1229 (“A public

employer cannot claim disruption of a close personal relationship to

cover up animus toward an employee’s speech and a desire to silence the

employee.”); see also Eng, 552 F.3d at 1074. And the precedent

establishes that “real, not imagined, disruption is required,” and

disruption between coworkers “cannot serve as a pretext for stifling

legitimate speech or penalizing public employees for expressing

unpopular views.” McKinley, 705 F.2d at 1115; see also Riley’s Am.

Heritage Farms, 32 F.4th at 730 (“[I]t is clearly established that a

government employer’s pretextual fear of a potential disruption or a

claim of imagined workplace disruption for which ‘there is no

support’ cannot outweigh the First Amendment interests of a

government employee.” (citations omitted)); see also Moser v. Las

Vegas Metro. Police Dep’t, 984 F.3d 900, 909 (9th Cir. 2021) (citing

Berger v. Battaglia, 779 F.2d 992, 1001 (4th Cir. 1985) (“[T]hreatened

disruption by others reacting to public employee speech simply may not

be allowed to serve as justification for public employer disciplinary

action directed at that speech.”)); cf. Keyser, 265 F.3d at 748 (protected

speech that naturally “‘engender[s] some hostility and resistance” cannot

be limited on account of the disruption that naturally follows (citation

omitted)).

32 DODGE V. EVERGREEN SCHOOL DISTRICT #114

they established apply “with obvious clarity to the specific

conduct” here. Lanier, 520 U.S. at 271.

Indeed, Principal Garrett does not seem to dispute that

she discriminated against Dodge’s viewpoint simply to

avoid the “discomfort and unpleasantness that always

accompany an unpopular viewpoint.” Tinker, 393 U.S. at

509. She argues to this court that having the hat on school

grounds harmed the interests of Wy’east:

Mr. Dodge’s decision to wear his MAGA hat

on school grounds within weeks of the Trump

Administration’s loud and publicized

initiative to deport as many immigrants as

possible was an affront to Wy’east’s agenda

of cultural inclusivity and interest in creating

a safe place for ELL students. Ms. Garrett had

a reasonable basis, given the anti- immigrant

tenor radiating from the administration, to

demonstrate inclusivity and tolerance to ELL

students and their parents on the school

campus . . . Mr. Dodge had [no] overriding

First Amendment right to wear the MAGA

hat on campus given the school’s stronger

interest of fostering an atmosphere of

workplace harmony, cultural inclusivity, and

safety for the students and staff.

It goes without saying that Dodge disputes this

characterization of his political views as evidenced by his

testimony explaining why he liked the MAGA message of

his hat. Accepting Principal Garrett’s arguments that

Dodge’s hat created disruption that warranted restricting his

DODGE V. EVERGREEN SCHOOL DISTRICT #114 33

expression would be akin to picking which of their

competing political viewpoints is superior.

It would be one thing if Principal Garrett was enforcing

a generally applicable policy that banned all political

expression. A government employer can categorically

prohibit political speech as a valid administrative interest

such that the prohibition does not favor or disfavor any

particular view. See Hudson v. Craven, 403 F.3d 691, 700–

01 (9th Cir. 2005). But that is not what happened here.

Although the District has a policy prohibiting all political

messaging in school now, the District’s counsel admitted at

oral argument that this policy was issued after Dodge filed

his HIB complaint. There was no general prohibition on

political speech when Principal Garrett told Dodge he could

not bring his MAGA hat to school.

Even more troublesome, Principal Garrett openly

admitted and defended her allowance of other political

symbols and speech at Wy’east, including a Black Lives

Matter poster hanging in the school library and a Bernie

Sanders bumper sticker displayed on her own car. And this

speech was not without its own controversies; when another

teacher, married to a police officer, “expressed concerns

about a Black Lives [Matter] poster” directly to Principal

Garrett, she took no action and testified that she could not

understand why the teacher “felt like [the poster] was

disrespectful of police.” Principal Garrett’s explanation for

her differing reactions boils down to her viewpoint

preference:

34 DODGE V. EVERGREEN SCHOOL DISTRICT #114

While the Black Lives Matter poster is a

symbol of cultural acceptance and inclusivity

. . . Mr. Dodge’s MAGA hat is a symbol

commonly associated with white supremacy

and other anti-immigrant sentiments.

Comparing an innocuous bumper sticker and

a racially supportive poster to the MAGA hat

is troglodytic and unacquainted with the

affairs of the world.

Based on the long-established precedent of both this court

and the Supreme Court, a reasonable school administrator at

the time of the events in this case would have known that

this was improper and the perceived unpopularity of a

political view is not itself justification to prohibit protected

expression. Dodge’s right to express political views, even as

a public-school teacher, is clearly established. See Tinker,

393 U.S. at 506. That controversial political speech cannot

be quelled because others may find the speech objectionable

is clearly established. See id. at 508–09. Taking these

principles together, the outcome of the Pickering balancing

test in this case appears with “obvious clarity.” Lanier, 520

U.S. at 271; Eng, 552 F.3d at 1076. Therefore, the district

court erred by granting summary judgment to Principal

Garrett.

B. The District

Dodge argues that the District is liable because the

school board ratified unconstitutional conduct by affirming

the denial of his HIB complaint against Principal Garrett and

by finding that she did not violate school policy. The

Supreme Court has held that a government entity is not liable

in a § 1983 action unless “the [entity] itself causes the

DODGE V. EVERGREEN SCHOOL DISTRICT #114 35

constitutional violation at issue.” City of Canton, Ohio v.

Harris, 489 U.S. 378, 385 (1989) (citing Monell v. New York

City Dep’t of Soc. Servs., 436 U.S. 658, 694–95 (1989)). The

plaintiff must establish both factual causation and proximate

causation. Harper v. City of Los Angeles, 533 F.3d 1010,

1026 (9th Cir. 2008). One way of establishing such liability

is ratification, which occurs when authorized policymakers

“approve a subordinate’s decision and the basis for it.”

Bouman v. Block, 940 F.2d 1211, 1231 (9th Cir. 1991).

“Ratification . . . generally requires more than

acquiescence,” and “a mere failure to discipline . . . does not

amount to ratification” of allegedly unconstitutional actions.

Sheehan v. City & County of San Francisco, 743 F.3d 1211,

1231 (9th Cir. 2014), rev’d in part on other grounds, 575

U.S. 600 (2015).

The school board’s dismissal of Dodge’s HIB complaint

on the grounds that Principal Garrett did not violate any

District “policy or procedure,” was not an approval of her

conduct or the basis for it. Concluding that conduct was not

prohibited is not the same as adopting or approving such

conduct. See Sheehan, 176 F.3d at 1239; see also Christie v.

Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999) (“[I]t is well-

settled that a policymaker’s mere refusal to overrule a

subordinate’s completed act does not constitute approval.”).

Indeed, the school board conducted further investigation into

Principal Garrett’s conduct after the investigation of

Dodge’s HIB complaint was completed, and it ultimately

asked her to resign her position as principal or face

discipline. These facts do not evidence ratification.

Consequently, Dodge has failed to establish that a material

dispute of fact exists regarding whether the District ratified

any unconstitutional conduct by Principal Garrett.

36 DODGE V. EVERGREEN SCHOOL DISTRICT #114

III. CONCLUSION

Taking the facts in the light most favorable to Dodge, a

jury could find that Principal Garrett retaliated against him

for engaging in political speech protected by the First

Amendment. Moreover, any violation of Dodge’s First

Amendment rights by Principal Garrett was clearly

established where long-standing precedent has held that

concern over the reaction to controversial or disfavored

speech itself does not justify restricting such speech. For

these reasons, we reverse the district court’s grant of

summary judgment in favor of Principal Garrett. Otherwise,

we affirm the district court’s grant of summary judgment in

favor of HR Officer Gomes and the District for the reasons

explained.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED. 7

7

Each party shall bear its own costs.