Doing Pickering Balancing Right

Eugene beat me to the punch in posting about the new 9th Circuit case on a teacher wearing a MAGA hat to his school's cultural sensitivity training session, so I will be brief. You can read a longer excerpt from the case in his post below.

I wanted to point out a specific feature of the case, which is how it treated the concept of workplace "disruption" within a Pickering balancing analysis of how government employers can respond to government employee speech. I recently posted about a district court opinion regarding political flyers at a state university that I think did this quite badly. In that case, "the court thought the university had an overriding 'interest in fostering a collegial educational environment,'" and thus could punish professors for distributing flyers on campus criticizing the politics of another professor.

I argue in a forthcoming article that the disruptive workplace component of the Pickering balancing test frequently becomes a means for imposing a heckler's veto on government employees with unpopular political views. Especially in a university context, courts should be extremely sensitive to the possibility that university officials might use the mere fact that some people disagree with a professor's speech as a good reason to suppress the speech. The government employer's legitimate interest in avoiding disruption to the workplace needs to be read much more narrowly, at least in some contexts.

The 9th circuit panel in the MAGA hat case did a much better job, and that court showed itself to be quite sensitive to the dangers of a heckler's veto when a principal threatens to fire a teacher because other teachers found the presence of his hat to be "traumatizing" and "threatening."

From the opinion:

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, or that its presence injured any of the school's legitimate interests "beyond the 'disruption that necessarily accompanies' [controversial] speech."

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, 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." 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. Political speech is the quintessential example of protected speech, and it is inherently controversial. 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.

Bravo.

I'll also just call attention to one disturbing component of the principal's defense of her actions against the MAGA-hat wearer.

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. [emphasis added]

University officials have likewise embraced the notion that cultural inclusivity and similar commitments are core values of the institution as they denounce speakers on campus who challenge that orthodoxy. It is hardly surprising that a school principal would draw the natural conclusion that anyone seen as questioning the school's "agenda" is ipso facto disruptive and should be sanctioned, even as political expression that is consistent with the school's "agenda" (like Black Lives Matter posters and Bernie Sanders bumper stickers) should be embraced.

The court here correctly, I believe, worked from the assumption that a government school was constitutionally required to be institutionally neutral about political values. The school as such could not prefer Black Lives Matter posters to MAGA hats, and could not base employment decisions on such preferences. It is evident that many university professors, administrators and leaders, at both public and private institutions, would not work from that same assumption.