A divided federal appeals court ruled that a rural Oregon school district lawfully fired an education specialist for keeping books about biological sex in his office, a decision the dissenting judge warned strips public employees of their First Amendment rights the moment a student walks by.
The 9th U.S. Circuit Court of Appeals issued its split ruling on July 21 in the case of Roderick Theis, a licensed clinical social worker employed by the InterMountain Education Service District in rural Oregon. Theis kept three children's books in his office: Johnny the Walrus by Matt Walsh, and He Is He and She Is She by Ryan and Bethany Bomberger. All three books present sex as binary and immutable. IMESD characterized the display as a "hostile expression of animus" related to gender identity and terminated him.
Two judges appointed by Democratic presidents sided with the district. One Trump-appointed judge dissented in an opinion several pages longer than the majority's, warning that the ruling creates an "expansive new rule" that effectively converts any personal expression by a public-school employee into government speech if a student might see it.
Judge John Owens wrote the majority opinion, joined by Judge Jennifer Sung. Owens leaned on what he called "a robust body of precedent holding that educators speak as government employees when they convey messages to students within the four walls of a school." He cited rulings from nine federal appeals courts spanning five decades and argued the Supreme Court had not taken "a sharp U-turn" from that line of cases.
Owens framed the question narrowly. Theis's books sat in the offices where he administered standardized tests to students one-on-one, spaces the majority described as "confined to the environments... in which he was assigned to perform his duties and to times when he was with students." The books, Owens wrote, "were visible to those students during evaluations and meetings."
The bottom line, as Owens put it:
"If an employee is on the clock, then the school district, not the employee, decides what he can or cannot say to students."
That principle, Owens added, amounts to "a settled principle: when a public education employee communicates messages to students in a pedagogical or evaluative setting, he is performing the work he was hired to do." He dismissed the dissent as "cheap cotton candy: a lot of fluff but ultimately no real substance."
Judge Lawrence VanDyke, a Trump appointee, did not take the insult quietly. His dissent cited the landmark student-speech case Tinker v. Des Moines three times and rejected the majority's core premise, that personal items on an employee's desk become government speech because students can see them.
VanDyke put the absurdity in concrete terms. As reported by Just the News, he wrote that an "everyday American" or a "reasonable observer" may be "shocked to learn that, when a teacher hangs a family portrait behind his desk, it is the government commemorating filial affection, not the teacher."
He then posed a pair of hypotheticals that exposed the selective enforcement lurking behind the majority's reasoning. Could a school permit employees to post "their own 'GLOBALIZE THE INTIFADA' banners in their offices, while simultaneously banning any employees from personally decorating with the Israeli flag"? Could administrators encourage teachers to wear MAGA pins "during all student interactions, but only those pins?"
Under the majority's framework, VanDyke argued, the answer to both questions is yes, because the government, not the employee, owns every message a student might glimpse. The result, he wrote, silences "any competing personal messages, thus giving the grossly misleading impression of monolithic uniformity of private opinions on what are really some of the most hotly contested issues in our society today."
The timeline that led to Theis's firing deserves scrutiny. About a year before the 9th Circuit ruling, U.S. Magistrate Judge Andrew Hallman, a part-time judicial officer appointed by the district court's confirmed judges, issued a partial preliminary injunction. Hallman ruled that Theis could display the books when students were not present in his offices. Even Hallman, though, found that Theis had displayed the books "while engaged in speech that IMESD paid him to produce", administering tests.
Two days after that partial injunction, IMESD opened a second investigation. The trigger: four students had cornered Theis in his office before school and demanded to see the books. VanDyke's dissent noted what happened next. "Perhaps coincidently," a teacher walked by the open office, "recorded a video of the students reading the books," and filed a complaint. Theis was fired.
Just the News asked IMESD and its lawyer, Kurt Peterson, about whether the second investigation was conducted in bad faith. Peterson responded but did not answer those questions. A year earlier, IMESD's lawyers had rebuked the outlet for contacting the district directly.
The majority opinion, VanDyke noted, "excludes the context of the incident", stating only that students "entered his office and accessed the books" without addressing the fact that the encounter happened before school, outside Theis's official duties.
Alliance Defending Freedom, the legal nonprofit representing Theis, did not publicly announce the 9th Circuit defeat. ADF also declined to answer questions from Just the News about its next steps. The organization has won 20 cases at the Supreme Court over the past 15 years, and its lawsuit against IMESD emphasized what it called a double standard: the district allegedly permitted employees to display progressive political messages, including "LGBTQ+ Justice Now!" and "Classrooms not cages" posters offered by the teachers union, while punishing Theis for books affirming biological sex.
The Oregonian also covered the ruling, though ADF's silence left the question of an appeal, whether to the full 9th Circuit or to the Supreme Court, unanswered.
The Theis ruling does not exist in isolation. A parallel case in the 2nd Circuit involves Marisol Arroyo-Castro, a Catholic teacher in New Britain, Connecticut, who displayed a waist-high crucifix on the wall beside her classroom desk. Her principal called the crucifix an "idol." The Consolidated School District of New Britain suspended Arroyo-Castro without pay and reassigned her outside the classroom after she refused to take it down.
U.S. District Judge Sarah Russell, a Biden nominee, denied Arroyo-Castro a preliminary injunction. Russell emphasized that the teacher's "job duties specifically included decorating the classroom walls", a framing that First Liberty Institute, which represents Arroyo-Castro, argues misapplies the Supreme Court's ruling in Kennedy v. Bremerton School District. In that case, the Court held that a Washington state high school football coach's post-game, on-field prayers were "outside official duties" and protected by the First Amendment.
First Liberty's opening brief to the 2nd Circuit argued that Arroyo-Castro's crucifix is "personal expression" no different than the "family photos, inspirational quote mugs, pop culture figurines, and sports memorabilia" displayed by other teachers. The brief also noted that "there is no evidence" anyone interpreted the crucifix as an endorsement of the Roman Catholic Church by the school district. And it challenged Russell's legal standard, arguing that the district's interest in "efficient operation of the school" was the wrong test, especially because the district itself conceded that teachers are "generally" allowed to display personal items in their classrooms.
The 2nd Circuit has not yet scheduled oral argument. If it reaches the opposite conclusion from the 9th Circuit on the scope of government-speech doctrine in schools, the resulting circuit split would create a strong vehicle for Supreme Court review.
Strip away the legal doctrine and the picture is plain. A school district in Oregon fired a social worker for keeping three children's books on his shelf, books whose only offense was affirming that boys are boys and girls are girls. The same district, ADF's lawsuit alleges, had no problem with employees displaying progressive political messages on union-supplied posters.
The 9th Circuit majority blessed that arrangement by declaring that everything inside a school building, on the clock, belongs to the government's voice. VanDyke's dissent called it what it is: a legal fiction that "[e]xactly no one believes."
The doctrine works only in one direction. Family photos, coffee mugs, sports pennants, those stay. A book that says sex is binary gets you fired. The majority opinion does not explain how a school district distinguishes permissible personal expression from impermissible personal expression without making viewpoint-based judgments. It simply assumes the government's good faith.
That assumption has not aged well in an era when public institutions routinely mandate one set of views on sex and gender while punishing the other. A then-3rd Circuit judge named Samuel Alito authored a 1998 opinion that the 9th Circuit majority itself cited, but the legal landscape Alito helped build at the Supreme Court, including the Kennedy decision, points in the opposite direction from where Owens and Sung landed.
ADF's silence after the ruling may not last. With 20 Supreme Court victories behind it and a parallel case building in the 2nd Circuit, the legal infrastructure for a challenge exists. Whether the organization asks the full 9th Circuit to rehear the case or waits for a circuit split to ripen remains to be seen.
When a government employer can fire you for the books on your shelf but not the political posters on your wall, the issue is not workplace management. It is viewpoint enforcement dressed in a robe.
