Background
Roderick E. Theis II, a licensed clinical social worker and education specialist for the InterMountain Education Service District, maintained offices where he evaluated and met with students. He displayed three children’s books—He Is He, She Is She, and Johnny the Walrus—that conveyed or allegorically addressed the view that gender is binary and cannot be changed.
After a complaint, IMESD determined that the displays constituted a bias incident under its “Every Student Belongs” policy. It directed Theis to stop displaying the books in his school offices and warned that noncompliance could lead to discipline. Theis sued under 42 U.S.C. § 1983 and sought a preliminary injunction. The district court allowed him to display the books when students were absent but denied protection for displays during student-facing work. It later denied his motion to enforce that injunction after students entered his office and accessed the books, and IMESD subsequently terminated his employment.
The Court’s Holding
The Ninth Circuit affirmed the denial of preliminary relief. The majority held that Theis displayed the books pursuant to his official duties when students were present because the displays occurred in school offices where he performed assigned evaluations and meetings, were visible to students during those interactions, and could not be meaningfully separated from his professional responsibilities. Under Garcetti v. Ceballos and circuit precedent, that student-facing expression was employee speech outside the First Amendment’s protection.
The court rejected Theis’s reliance on Kennedy v. Bremerton School District. Unlike the coach’s brief personal prayer after his professional responsibilities had ended, Theis’s displays occurred while he was performing core duties and interacting with students. Because the speech was not covered by the First Amendment, the court did not conduct the balancing test under Pickering v. Board of Education. It also affirmed the denial of Theis’s motion to enforce the partial injunction; additional claims and arguments were addressed in a separate memorandum disposition.
Key Takeaways
- A K–12 public employee’s messages to students in a pedagogical or evaluative setting may constitute speech pursuant to official duties, even when conveyed through office displays rather than spoken instruction.
- Kennedy did not displace precedent governing student-facing employee speech because its holding concerned personal expression detached from the employee’s active job duties.
- Once the court determined that Theis was speaking as a public employee, it found no First Amendment coverage and therefore did not reach Pickering balancing.
Why It Matters
The decision reinforces public-school employers’ authority to control messages conveyed by employees to students while performing assigned duties. It also draws a line between expression occurring during student-facing professional work and personal expression outside those duties.
Judge Lawrence VanDyke dissented, reasoning that the books were personal office decorations comparable to other employees’ expressive displays and that Kennedy required treating them as private speech. He would have applied Pickering and concluded that the record showed no disruption sufficient to outweigh Theis’s speech interest.