9th Circuit rules a school social worker's display of books about gender in his office…
Theis v. Intermountain Education Service District - Board of Directors
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9th Circuit rules a school social worker's display of books about gender in his office was government speech, not protected personal expression under the First Amendment.
Why it matters
The Ninth Circuit affirmed a lower court's denial of a preliminary injunction for Roderick Theis, a school-based social worker who was directed by his employer to remove children's books expressing views on gender from his school offices. The majority held that because Theis's book displays occurred within school offices where he met with students as part of his job duties, his speech was that of a government employee acting within his professional responsibilities, placing it outside First Amendment protection. A dissenting judge argued the books were personal office decorations, not government speech, and that Supreme Court precedent required applying a balancing test that would favor Theis.
Who it affects
- Such as counselors
- Social workers
- Specialists
What happens next
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Decision issued Jul 21, 2026
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Jul 21, 2026 · Published opinion
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Roderick Theis worked as a licensed clinical social worker and Education Specialist for the InterMountain Education Service District in Oregon for more than fifteen years. He displayed children's books in his school offices, including two books sharing the theme that gender is binary and cannot be changed, and a third book that allegorically comments on transgender issues. After a complaint was filed, his employer concluded the displays constituted a bias incident, ordered him to remove the books, and warned that noncompliance could lead to termination. Theis sued under federal civil rights law, claiming his First Amendment free speech rights were violated, and sought a preliminary injunction to stop enforcement of the order. The Ninth Circuit majority, written by Judge Owens, held that the district court did not abuse its discretion in denying the injunction. The majority reasoned that there is a robust body of precedent establishing that educators speak as government employees when they convey messages to students within school walls. Because Theis was assigned to work in school offices and meet with students as part of his core duties, his display of the books in those spaces could not be meaningfully separated from his professional responsibilities. Speech made in the course of government employment duties falls outside First Amendment protection, meaning the court did not need to weigh Theis's speech interests against his employer's interests under the standard balancing test. The majority also distinguished this case from the Supreme Court's 2022 decision in Kennedy v. Bremerton School District, which involved a football coach praying privately after games. The majority said Kennedy involved a moment of personal expression detached from the employee's role, whereas Theis's offices were the very setting where he performed his job duties with students. Judge VanDyke dissented, arguing that Theis's placement of books as office decorations was personal expression, not the government's speech. The dissent contended that Kennedy established some employee expression remains personal even when students can observe it on school grounds, and that the majority's reasoning cannot be reconciled with that precedent. The dissent further argued that because the books related to a matter of public concern and the record contained no evidence of disruption to the district's operations, the balancing test should have been applied and would have favored protecting Theis's speech. This decision reinforces, at least within the Ninth Circuit, that public school employees who display materials in offices where they serve students may not be able to claim personal First Amendment protection for those displays, depending on how closely the display is tied to their professional duties.
CITATION AND RECORD
Record source: CourtListener
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RODERICK E. THEIS II, Nos. 25-5641 25-8039 Plaintiff - Appellant, D.C. No. v. 2:25-cv-00865- HL INTERMOUNTAIN EDUCATION SERVICE DISTRICT - BOARD OF OPINION DIRECTORS; MARK S. MULVIHILL, Superintendent, in their official capacity; AIMEE VANNICE, Assistant Superintendent and Director of Human Resources, in their official capacity Defendants - Appellees. Appeal from the United States District Court for the District of Oregon Andrew D. Hallman, Magistrate Judge, Presiding * Argued and Submitted April 13, 2026 Portland, Oregon Filed July 21, 2026 * The parties consented to trying the case before a magistrate judge. See 28 U.S.C. § 636(c). 2 THEIS V. IMESD Before: John B. Owens, Lawrence VanDyke, and Jennifer Sung, Circuit Judges. Opinion by Judge Owens; Dissent by Judge VanDyke SUMMARY ** First Amendment The panel affirmed the district court’s order denying plaintiff Roderick E. Theis II’s motion for a preliminary injunction in his 42 U.S.C. § 1983 action against InterMountain Education Service District (“IMESD”), its Board of Directors, and other officials, alleging that defendants violated his First Amendment rights under the Free Speech Clause by directing him to remove certain books from his offices and by reprimanding him for displaying those books. Theis, a licensed clinical social worker who served as an Education Specialist within the IMESD, displayed two books—He Is He and She Is She—in his office at La Grande Middle School. These books share the themes that gender is binary and cannot be changed. In his Elgin School District office, Theis displayed on his desk a different children’s book—Johnny the Walrus—which allegorically comments on transgender issues. Following a complaint, Theis acknowledged displaying all three books in his offices while ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. THEIS V. IMESD 3 meeting with students on the job, but said that he had never intended to harm anyone and that the books were not hostile. IMESD concluded that Theis’s display of the books constituted a bias incident, directed Theis to stop displaying the books in his school offices, and warned that noncompliance could result in discipline, including termination. The panel held that the district court did not abuse its discretion in denying his motion for a preliminary injunction 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. His speech occurred in the course of those responsibilities and cannot be meaningfully separated from them. As such, Theis’s speech falls outside the First Amendment’s ambit. Because the panel determined Theis’s speech was beyond First Amendment coverage, it did not conduct the Pickering balancing test. The panel distinguished this case from Kennedy v. Bremerton School District, 597 U.S. 507, 509 (2022), because Theis was not engaged in a moment of private expression detached from his role, but rather, he was engaged in his core professional responsibilities. The panel addressed Theis’s additional claims in a concurrently filed memorandum disposition. Dissenting, Judge VanDyke wrote that, like the personal views that Theis’s colleagues were permitted to express in their offices, Theis’s placement of three children’s books as 4 THEIS V. IMESD decorations in his office was his own personal expression, not the government’s. The Supreme Court in Kennedy established that some employee expression remains personal even though it is observed by students on school grounds, and the majority’s approach cannot be reconciled with Kennedy. Judge VanDyke further wrote that because Theis’s office decorations related to a matter of public concern and because the record contains no evidence of any disruption to IMESD’s interests that could outweigh Theis’s speech interest, Theis’s expression is protected by the First Amendment under Pickering. COUNSEL Mathew W. Hoffmann (argued), Tyson C. Langhofer, and Matthew C. Ray, Alliance Defending Freedom, Lansdowne, Virginia; David A. Cortman and Travis C. Barham, Alliance Defending Freedom, Lawrenceville, Georgia; John J. Bursch, Alliance Defending Freedom, Washington, D.C.; Rebekah Schultheiss, Law Offices of Rebekah Millard LLC, Springfield, Oregon; for Plaintiff-Appellant. Blake H. Fry (argued) and Janet M. Schroer, Hart Wagner LLP, Portland, Oregon, Defendants-Appellees. Kevin J. Daniel and Gareth A. Bowen, Troxell Leigh PC, Leesburg, Virginia, for Amicus Curiae Parents' Rights in Education. Justin M. Oliveira and Emily Jones, Jones Law Firm PLLC, Billings, Montana, for Amici Curiae Montana First Amendment Society, Montana Public Policy Center, and 1776 Foundation. THEIS V. IMESD 5 J. Michael Connolly, Cameron T. Norris, and Paul R. Draper, Consovoy McCarthy Park PLLC, Arlington, Virginia, for Amicus Curiae Defending Education. Deborah J. Dewart, Attorney at Law, Hubert, North Carolina, for Amicus Curiae NC Values Institute. Meredith H. Kessler and John A. Meiser, Lindsay and Matt Moroun Religious Liberty Clinic, Notre Dame Law School, Notre Dame, Indiana, for Amicus Curiae Lindsay and Matt Moroun Religious Liberty Clinic. J. Marc Wheat, Advancing American Freedom, Washington, D.C.; Madison Hahn, Young America's Foundation, Reston, Virginia; Celia Howard O'Leary, Southeastern Legal Foundation, Roswell, Georgia; for Amici Curiae Young America's Foundation, Advancing American Freedom, and Southeastern Legal Foundation. 6 THEIS V. IMESD OPINION OWENS, Circuit Judge: Roderick E. Theis II appeals from the district court’s order denying his motion for a preliminary injunction and from the district court’s separate order denying his motion to enforce its partial preliminary injunction. We have jurisdiction under 28 U.S.C. § 1292(a), and we affirm. I. BACKGROUND A. Theis’s Work and His Offices Theis, a licensed clinical social worker, served as an Education Specialist within the InterMountain Education Service District (“IMESD”) for more than fifteen years. In that role, he assessed and supported students’ educational needs for schools in eastern Oregon. His duties included meeting individually with students, administering standardized assessments, preparing reports, and consulting with educators. Theis maintained offices at La Grande Middle School (“La Grande”) and in the Elgin School District (“Elgin”). Students entered these offices for evaluations and standardized testing under his supervision. Although Theis also used the offices for administrative work when students were not present, his workspaces functioned, at least in part, as locations where he interacted directly with students in the course of performing his job duties. Like others who worked at La Grande and Elgin, Theis decorated his office with personal items, which led to this litigation. In his La Grande
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