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Oregon school officials didn’t violate the First Amendment when they told an employee to remove certain books from his offices and punished him for displaying them, after a complaint that the displays were “transphobic and a bias incident” in violation of school policy.
Tuesday’s ruling to that effect, over a dissent from a Trump appointee that the majority called “cheap cotton candy,” came from a divided three-judge panel on the U.S. Court of Appeals for the 9th Circuit, which hears cases from Oregon and nearby states.
Rejecting Rod Theis’ free speech appeal, the majority said his claim “falls outside the First Amendment’s ambit” because he displayed the books in a setting where he met with students to carry out his duties as an education specialist.
“His speech occurred in the course of those responsibilities and cannot be meaningfully separated from them,” Obama appointee John Owens wrote, joined by Biden appointee Jennifer Sung.
Theis displayed two books — “He Is She” and “She Is She” — in his office at La Grande Middle School, and he displayed the book “Johnny the Walrus” in his Elgin School District office. The court described the first two books as having “themes that gender is binary and cannot be changed,” and it called the third book, authored by conservative commentator Matt Walsh, one that “allegorically comments on transgender issues.”
After investigating a 2024 complaint, InterMountain Education Service District deemed the display a “bias incident” because it was a “hostile expression of animus” related to gender identity. The school told Theis to stop displaying the books and warned him that noncompliance could lead to discipline, including firing. He was ultimately terminated.
The panel majority distinguished Theis’ case from the Supreme Court’s 2022 ruling that sided with the praying football coach in Kennedy v. Bremerton School District. Unlike the coach, the panel said, Theis wasn’t “engaged in a moment of private expression detached from his role” while he displayed the books to students.
“To the contrary, he was engaged in his core professional responsibilities,” Owens wrote.
The majority said it was clear that Theis wasn’t entitled to relief, due to 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.”
Dissenting judge Lawrence VanDyke saw it as an easy case going the other way. The provocative Trump appointee began his dissent like this:
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? Could public school administrators establish a policy allowing office decoration with partisan political messages deemed sufficiently “compassionate,” but prohibit — as inherently “hostile” — any political speech that did not align with the Democratic Socialists of America platform? Could teachers be encouraged to wear large, red pins reading “Make America Great Again” during all student interactions — but only those pins?
VanDyke said “you might be an everyday American” if your “instinctual answer to each of these questions is ‘No!’”
He said the majority disagrees with that everyday American instinct in its ruling that he called “irreconcilable with Supreme Court precedent.”
He accused his colleagues of announcing “an expansive new rule that all expression by public-school employees that might be observed by students is necessarily government speech, and not the personal speech of an American citizen — even when any reasonable observer would perceive the speech as the employees’ own personal expression.”
Responding to VanDyke in the majority opinion, Owens accused the dissent of “overreading” the Kennedy precedent and “closing its eyes to over fifty years of precedent” from other circuits that “clearly answers the question before us.” Owens said that “despite its length,” the dissent is “cheap cotton candy: a lot of fluff but ultimately no real substance.”
The Supreme Court could be called on to answer whether it thinks the panel ruling is reconcilable with its precedents.
Asked by MS NOW whether Theis will appeal further to a larger panel of circuit judges or the Supreme Court, the Alliance Defending Freedom’s Mathew Hoffmann said they are “evaluating our next steps.” He added: “The government can’t silence a speaker just because it disapproves of what he says, yet InterMountain fired Rod Theis after a single person objected to his views. We will continue to defend Rod’s First Amendment freedom to express his views like other employees.”
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The post Over Trump judge’s dissent, school can block employee’s ‘transphobic’ book display appeared first on MS NOW.
This article was originally published on ms.now
