A teacher who walked by and recorded the students viewing the books filed a complaint.
minute read
The US Ninth Circuit Court of Appeals has ruled against an Oregon educator who sued the school district after he was fired for displaying books that oppose transgender ideology, such as "He is He" and "She is She." In a 2-1 decision, the appeals court rejected Roderick Theis II's First Amendment lawsuit, upholding his termination from Oregon's Intermountain Education Service District over claims he was anti-trans. Theis is expected to appeal to the United States Supreme Court.
Theis was fired in November 2023 for violating Oregon's discrimination in public education statute after the district determined that the book displays constituted a "bias incident." Under the district's "Every Student Belongs" policy, a bias incident is defined as "hostile expression animus" based on protected classes and characteristics, including gender identity, the Oregonian reported.
On Tuesday, Judge John Owens, appointed by Barack Obama, and Judge Jennifer Sung, appointed by Joe Biden, upheld the lower court ruling, while Judge Lawrence VanDyke, appointed by President Donald Trump, issued a fiery dissent.
According to court documents, the district received a complaint about Theis' book displays. The education specialist and licensed clinical social worker had the books "He is He" and "She is She" displayed at his La Grande Middle School office. The two books include a message that the gender an individual was born with cannot be changed.
Additionally, Theis had The Daily Wire's Matt Walsh's children's book "Johnny the Walrus" featured on his desk at his Elgin office. Critics have described the book as anti-transgender. It's about a boy named Johnny who pretends to be a walrus and has to decide if he truly is a walrus, or just a little boy with a big imagination.
The school district launched an investigation, during which Theis acknowledged the books but indicated that they were not meant to harm students. Theis said that he might "put the books aside" if a transgender student were to come into his office, per the Oregonian. The district ruled that Theis violated policy and fired him.
Theis sued in federal court, citing First Amendment rights, and was granted a partial injunction, allowing Theis to display the books while students weren't in his La Grande office. A few days later, several students walked into his office and asked to read the books. Theis initially objected but then allowed the students to view the books under the impression that the injunction did not apply when he wasn't working in his official capacity.
A teacher happened to walk by and recorded the students viewing the books and filed a complaint. The school district determined that Theis violated policy and the court order. The lower court upheld Theis' termination, ruling that the order did not protect the book display with students present.
Appeals Court Judges Owens and Sung sided with the lower court decision, ruling that it had acted appropriately "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," wrote Owens for the majority opinion. "His speech occurred in the court of those responsible and cannot be meaningfully separated from them."
In contrast, Judge VanDyke slammed his counterparts in a scathing dissent, arguing that their opinion creates an "expansive new rule that all expression by public school employees that might be observed by students is necessarily government speech," rather than their own personal protected speech. He added that the ruling is "irreconcilable with Supreme Court precedent."
"Like his colleagues' personal items - Pride flags, Black Lives Matter posters, and political endorsements - Theis's placement of three children's books as decorations in his office was his own personal speech, not government speech," wrote VanDyke. "Could an American public school permit its employees to string up their own 'GLOBALIZE THE INTIFADA' banners in their offices, while simultaneously banning any employees from personally decorating with the Israeli flag?" he continued.
Furthermore, VanDyke wrote that a "free and open American society appropriately recoils at the prospect of public school teachers becoming involuntarily conscripted apparatchiks of any administration's particular orthodoxy. Because Theis' office decorations related to a matter of public concern and because the record contains no evidence of a threat to IMESD's interests that could outweigh Theis' speech interest, Theis' expression is protected by the First Amendment. This is not that hard of a case."
Theis was fired in November 2023 for violating Oregon's discrimination in public education statute after the district determined that the book displays constituted a "bias incident." Under the district's "Every Student Belongs" policy, a bias incident is defined as "hostile expression animus" based on protected classes and characteristics, including gender identity, the Oregonian reported.
On Tuesday, Judge John Owens, appointed by Barack Obama, and Judge Jennifer Sung, appointed by Joe Biden, upheld the lower court ruling, while Judge Lawrence VanDyke, appointed by President Donald Trump, issued a fiery dissent.
According to court documents, the district received a complaint about Theis' book displays. The education specialist and licensed clinical social worker had the books "He is He" and "She is She" displayed at his La Grande Middle School office. The two books include a message that the gender an individual was born with cannot be changed.
Additionally, Theis had The Daily Wire's Matt Walsh's children's book "Johnny the Walrus" featured on his desk at his Elgin office. Critics have described the book as anti-transgender. It's about a boy named Johnny who pretends to be a walrus and has to decide if he truly is a walrus, or just a little boy with a big imagination.
The school district launched an investigation, during which Theis acknowledged the books but indicated that they were not meant to harm students. Theis said that he might "put the books aside" if a transgender student were to come into his office, per the Oregonian. The district ruled that Theis violated policy and fired him.
Theis sued in federal court, citing First Amendment rights, and was granted a partial injunction, allowing Theis to display the books while students weren't in his La Grande office. A few days later, several students walked into his office and asked to read the books. Theis initially objected but then allowed the students to view the books under the impression that the injunction did not apply when he wasn't working in his official capacity.
A teacher happened to walk by and recorded the students viewing the books and filed a complaint. The school district determined that Theis violated policy and the court order. The lower court upheld Theis' termination, ruling that the order did not protect the book display with students present.
Appeals Court Judges Owens and Sung sided with the lower court decision, ruling that it had acted appropriately "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," wrote Owens for the majority opinion. "His speech occurred in the court of those responsible and cannot be meaningfully separated from them."
In contrast, Judge VanDyke slammed his counterparts in a scathing dissent, arguing that their opinion creates an "expansive new rule that all expression by public school employees that might be observed by students is necessarily government speech," rather than their own personal protected speech. He added that the ruling is "irreconcilable with Supreme Court precedent."
"Like his colleagues' personal items - Pride flags, Black Lives Matter posters, and political endorsements - Theis's placement of three children's books as decorations in his office was his own personal speech, not government speech," wrote VanDyke. "Could an American public school permit its employees to string up their own 'GLOBALIZE THE INTIFADA' banners in their offices, while simultaneously banning any employees from personally decorating with the Israeli flag?" he continued.
Furthermore, VanDyke wrote that a "free and open American society appropriately recoils at the prospect of public school teachers becoming involuntarily conscripted apparatchiks of any administration's particular orthodoxy. Because Theis' office decorations related to a matter of public concern and because the record contains no evidence of a threat to IMESD's interests that could outweigh Theis' speech interest, Theis' expression is protected by the First Amendment. This is not that hard of a case."
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