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A sharply divided federal appeals court ruled Tuesday that an Oregon school employee’s display of books promoting binary gender views was not protected by the First Amendment when students were present in his office.
The 2-1 decision by the 9th U.S. Circuit Court of Appeals upheld the firing of Roderick E. Theis II from Oregon’s Intermountain Education Service District and rejected his appeal.
Theis, a licensed clinical social worker who served as an education specialist, displayed books with binary gender themes in two school offices where he met with students.
In his office at La Grande Middle School, he kept two books — “He Is He” and “She Is She” — that conveyed the message that gender is binary and cannot be changed. In his Elgin office, Theis displayed “Johnny the Walrus,” a children’s book some describe as anti-transgender. The book by Matt Walshsays it’s about a boy named Johnny with a big imagination who likes to make-believe but is “forced” to make a decision between the boy he is and the things he “pretends to be.”
The Intermountain Education Service District serves Morrow, Umatilla, Union, Wallowa, Grant, Baker and Malheur counties in eastern Oregon.
Oregon law prohibits discrimination in public education and requires education providers to adopt policies addressing what it deems “bias incidents.” The district’s “Every Student Belongs” policy defines a bias incident as a “hostile expression of animus” based on a protected characteristic, including gender identity.
The case began when the district received a complaint about the books. During an investigation, Theis acknowledged displaying all three books while meeting with students but said he never intended harm and that the books were not hostile. He added that he “might put the books aside” if he knew a transgender student would be entering his office.
In November 2023, the district found that Theis’ display constituted a “bias incident” under its “Every Student Belongs” policy and ordered him to stop displaying the books in his offices, warning he could face termination if he didn’t comply.
Theis sued in federal court, seeking an order allowing him to display the books.
U.S. Magistrate Judge Andrew D. Hallman issued a partial injunction, ruling the district could bar the books when students were in Theis’ office but not when the office was empty.
Two days later, four eighth graders entered Theis’ office before school began and asked to see the books. Theis attempted to “redirect” them, but the students persisted, according to the dissenting opinion.
Operating under the assumption that the injunction allowed him to display the books when he wasn’t working with students in his official duties, he eventually let them view the books.
A La Grande teacher walking by recorded video of the students reading the books and filed a complaint.
The district conducted a subsequent investigation, found Theis had violated both its policies and the court order, and it fired him. When Theis challenged the termination, Hallman ruled that his partial injunction had not protected Theis’ display of the books in the presence of students.
Circuit Judge John B. Owens, joined by Circuit Judge Jennifer Sung, found the lower court acted appropriately “given the robust body of precedent holding that educators speak as government employees when they convey messages to students within the four walls of a school.”
“As a government employee, Theis was assigned to work in school offices, meet with students, and carry out his duties in that setting,” Owens wrote for the majority. “His speech occurred in the course of those responsibilities and cannot be meaningfully separated from them.”
The majority distinguished Theis’ actions from those of Bremerton football Coach Joe Kennedy, whose 50-yard line prayers were ruled protected private speech by the U.S. Supreme Court in 2022.
“Unlike Coach Kennedy, who was off the clock, Theis was not engaged in a moment of private expression detached from his role,” the majority opinion stated. “To the contrary, he was engaged in his core professional responsibilities.”
Circuit Judge Lawrence VanDyke issued a stinging dissent, calling the majority ruling “irreconcilable with Supreme Court precedent.”
He argued it creates an “expansive new rule that all expression by public school employees that might be observed by students is necessarily government speech,” rather than personal speech.
“Like his colleagues’ personal items — Pride flags, Black Lives Matter posters, and political endorsements — Theis’s placement of three children’s books as decorations in his office was his own personal speech, not government speech,” VanDyke wrote.
He posed hypothetical questions to illustrate his concerns: “Could an American public school permit its employees to string up their own ‘GLOBALIZE THE INTIFADA’ banners in their offices, while simultaneously banning any employees from personally decorating with the Israeli flag?”
VanDyke wrote that a “free and open American society appropriately recoils at the prospect of public school teachers becoming involuntarily conscripted apparatchiks of any administration’s particular orthodoxy.”
“Because Theis’s office decorations related to a matter of public concern and because the record contains no evidence of a threat to IMESD’s interests that could outweigh Theis’ speech interest, Theis’s expression is protected by the First Amendment,” VanDyke wrote in his dissenting opinion. “This is not that hard of a case.”
Owens was appointed to the court by President Barack Obama in 2014, and Sung by President Joe Biden in 2021. VanDyke was appointed by President Donald Trump in 2020.
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