Background
Roderick E. Theis II, a licensed clinical social worker, served as an Education Specialist for the Intermountain Education Service District (IMESD) in Oregon, where he met with students in his school-based offices. In his offices, he displayed three books as personal decorations: He Is He and She Is She and Johnny the Walrus. The books convey the perspective that gender is binary and immutable.
In October 2024, after a staff member complained that the books were transphobic, IMESD investigated the display as a potential “bias incident” under its “Every Student Belongs” policy. The district concluded the display was a “hostile expression of animus” related to gender identity. It issued a written directive ordering Theis to remove the books from his offices when students might be present, warning that failure to comply could lead to his termination. Theis’s internal appeals were denied.
Theis filed a lawsuit under 42 U.S.C. § 1983, alleging the directive violated his First Amendment free speech rights. He moved for a preliminary injunction to block the directive. The district court partially denied the injunction, ruling that while Theis could display the books when students were not present, the school could prohibit the display during interactions with students. Theis appealed the partial denial to the Ninth Circuit.
The Court’s Holding
The U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s decision, holding that Theis was not likely to succeed on the merits of his First Amendment claim. The court ruled that IMESD could prohibit him from displaying the books in his office during student-facing work because his expression in that context was government speech, not protected private speech.
The panel’s reasoning rested on the U.S. Supreme Court’s precedent in Garcetti v. Ceballos, which holds that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes. The court determined that Theis’s book display “owe[d] its existence to his position” and occurred in his office where he was paid to interact with and evaluate students. Therefore, his speech was part of his professional duties, and the school district, as his employer, had the authority to control that speech.
The court also distinguished the case from the Supreme Court’s decision in Kennedy v. Bremerton School District, which protected a football coach’s quiet, post-game prayer on the field. The panel reasoned that unlike Coach Kennedy’s prayer, which was found to be a “brief, quiet, personal religious observance” separate from his duties, Theis’s display was part of his student-facing work environment and occurred during his core professional responsibilities. The court concluded that Kennedy did not alter the long-standing rule that a school district can regulate an employee’s curricular or in-school speech.
Key Takeaways
- A public school employee’s expression within a student-facing work environment, including personal items displayed in an office, may be considered speech made pursuant to official duties.
- Under the government speech doctrine established in Garcetti, speech made by a public employee as part of their job is not protected by the First Amendment and can be controlled by the employer.
- The Supreme Court’s ruling in Kennedy v. Bremerton, protecting certain private employee expression, is limited to speech that is personal and separate from an employee’s core professional duties.
Why It Matters
This decision reinforces the broad authority of public school districts to regulate employee speech that occurs within the educational setting. By classifying an office display as government speech, the ruling affirms that schools can control the messages employees convey to students—whether spoken or through visual displays—to ensure they align with district policies and educational goals. This is particularly relevant for contentious social issues, where a school’s interest in promoting an inclusive environment may conflict with an employee’s personal expression.
For legal practitioners, the case clarifies the boundaries of the Kennedy decision, signaling that courts may continue to apply the Garcetti framework to on-the-clock, in-school employee expression. It underscores a critical distinction in First Amendment law: while employees do not lose their rights at the schoolhouse gate, their rights are significantly limited when their expression can be reasonably viewed as part of the job they are paid to perform.