Background
Roderick Theis, a licensed clinical social worker and Education Specialist, displayed three children’s books in his school offices that addressed gender identity. The books included titles with themes that gender is binary and a book allegorically commenting on transgender issues. Following complaints, the school district determined the displays constituted bias incidents and directed Theis to remove them. Theis filed a lawsuit under Section nineteen eighty-three of Title forty-two of the United States Code, alleging a violation of his First Amendment rights. The district court granted a partial preliminary injunction allowing display only when students were absent, but Theis appealed the denial of the injunction regarding student-facing times.
The court’s reasoning
The panel held that Theis spoke as a government employee when displaying the books in his office while meeting with students. The court found that his speech occurred within the scope of his professional role and was aimed at students, meaning it could not be meaningfully separated from his official duties. The court relied on the principle that when a public employee makes statements pursuant to official duties, the Constitution does not insulate that communication from employer discipline. The panel distinguished Kennedy v. Bremerton School District, explaining that the coach’s prayer was a moment of private expression detached from his role, whereas Theis was engaged in his core professional responsibilities. Because the speech fell outside First Amendment coverage, the court did not conduct the Pickering balancing test.
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.
Theis v. Intermountain Educ. Serv. Dist., No. 25-5641, 25-8039 (9th Cir. July 21, 2026)
The dissent
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.
Lawrence VanDyke
What it means going forward
The decision reinforces the rule that public school employees speaking to students in a pedagogical or evaluative setting are acting as government employees, not private citizens, and their speech is subject to employer control.