Appeals court allows school to fire employee for book display affirming biological sex

A federal appeals court ruled earlier this week to uphold the termination of an Oregon school counselor fired for displaying books that linked gender to biological sex. The three-judge panel issued a 2-1 ruling, concluding that the employee’s books were not protected under the First Amendment when students were present.

Certified clinical social worker Roderick E. Theis II served as an education specialist within northeastern Oregon’s Intermountain Education Service District. Theis met with students at two separate campuses and maintained two separate offices, where he displayed books titled “He is He” and “She is She.” He also displayed a children’s book by conservative commentator Matt Walsh titled “Johnny the Walrus,” a book which LGBT advocates accused of being transphobic.

The district received reports about the books in Theis’ offices and launched an investigation. Theis told district investigators that he meant no harm by displaying the books and even considered moving the books when transgender-identifying students came to see him. District officials ultimately labeled his display of the books as a “bias incident,” which district policy defined as a hostile expression of animus. Administrators instructed Theis to remove the books or face possible termination.

The counselor filed a federal lawsuit for a protective order that would allow him to display the books, which a district judge partially granted. The district may only ban the books' display when students visited Theis’ office, but not while the office stood empty, the judge ruled. Despite the partial injunction, the district later fired Theis after an investigation proved that the counselor had shown the books to middle school students who expressly asked to see them.

Theis interpreted the injunction as only applicable while meeting with students in his official capacity, and concluded that the order wouldn’t apply to students outside of sessions. The lower court issued another ruling against Theis’ termination appeal, but held that the partial injunction never allowed Theis to display the books with students present.

The 9th U.S. Circuit Court of Appeals upheld the lower court's ruling on Tuesday. The court cited many precedents establishing that educators' speech constituted government speech when talking with students, according to Circuit Judge John B. Owens’ majority opinion. The majority noted what it said were the differences between Theis’ case and the Supreme Court’s 2022 ruling affirming football Coach Joe Kennedy’s football field prayers as protected private speech. Kennedy engaged in private expression while off the clock, but Theis’ expression happened while he carried out core professional responsibilities, the Tuesday ruling continued.

Who dissented with the majority opinion? Circuit Judge Lawrence VanDyke penned a sharp dissent, describing the majority decision as irreconcilable with SCOTUS precedent. Under the majority’s interpretation, any expression made by a public school employee that a student observed would constitute government speech, according to VanDyke.

Theis’ books constituted personal decor items in his office, similar to his colleagues displaying Pride flags, Black Lives Matter posters, and political endorsements in their offices, he wrote. VanDyke questioned whether a school could allow one employee to display a Palestinian intifada banner in their office, while simultaneously banning another employee from displaying the Israeli flag. Free Americans rightfully recoil at the idea of public school teachers being involuntarily conscripted to loyally push a particular administration’s orthodoxy, VanDyke argued.