Dodge v. Evergreen Sch. Dist.

Political speech is “inherently controversial” and quintessential protected speech. See Nat’l Ass’n for Gun Rights, Inc., v. Mangan, 933 F.3d 1102, 1111–12 (9th Cir. 2019).

Petitioner wore a political hat to a teacher’s only training and was told by his principal that if he wore it again, he would “need to have his union representative present,” despite allowing other kinds of expressions of political speech. Petitioner sued, alleging retaliation after engaging in protected speech in violation of the First Amendment. 42 U.S.C. § 1983. Respondent’s motion for summary judgment was granted, based on qualified immunity. Petitioner appealed. Qualified immunity does not protect violations of “clearly established . . . constitutional rights . . . [that] a reasonable person would have known.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 599 (9th Cir. 2019) (internal quotations removed). Political speech is “inherently controversial” and quintessential protected speech. See Nat’l Ass’n for Gun Rights, Inc., v. Mangan, 933 F.3d 1102, 1111–12 (9th Cir. 2019). Disagreement with a political viewpoint alone is not enough to justify restraining expression at a public school, actual disruption is required. See, e.g., Pickering v. Bd. of Ed., 391 U.S. 563, 572-73 (1968). Fear of disruption, general unpleasantness and discomfort, always accompany controversial speech, but standing alone do not warrant discriminatory action. The principal was not enforcing a generally applicable policy banning political expression, she was singling out petitioner for his expression of political speech, which a reasonable administrator would have known was improper. Reversed in part.