A federal appeals court has upheld the termination of a former Oregon school counselor who displayed books with gender-themed content to students, ruling that his actions were not protected by the First Amendment.
The 9th U.S. Circuit Court of Appeals affirmed the decision on Tuesday, stating that Roderick E. Theis II’s display of books such as "He is He" and "She is She" in his office was considered government speech in his capacity as an employee of the InterMountain Education Service District (IMESD).
Theis, who had worked at IMESD for over 15 years as an education specialist for middle school students, also displayed "Johnny the Walrus," a book by conservative commentator Matt Walsh that allegorically addresses transgender issues. Following an investigation, IMESD determined the book display was a "bias incident" and instructed Theis to remove the materials or face termination.
While a lower court had granted a partial protective order allowing Theis to display the books when students were not present, his employment was ultimately terminated after the district found he had provided the books to students who requested them. Theis's appeal argued that his speech should be protected when meeting with students outside of official sessions.
However, the majority opinion from the 9th Circuit stated that Theis’s speech occurred within the scope of his professional responsibilities and could not be separated from them. "As a government employee, Theis was assigned to work in school offices, meet with students, and carry out his duties in that setting," wrote Circuit Judge John B. Owens in the ruling. "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."
Circuit Judge Lawrence VanDyke dissented, arguing that the books could be considered personal office decorations and questioning the district's stance on political speech. He raised concerns about whether school administrators could permit certain political messages while prohibiting others.
Theis's attorneys and IMESD did not immediately respond to requests for comment. The Ninth U.S. Circuit Court of Appeals is located in San Francisco.
The InterMountain Education Service District is based in Oregon.
