Theis v. Intermountain Education Service District - Board of Directors

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RODERICK E. THEIS II, Nos. 25-5641 25-8039 Plaintiff - Appellant, D.C. No. v. 2:25-cv-00865- HL INTERMOUNTAIN EDUCATION SERVICE DISTRICT - BOARD OF OPINION DIRECTORS; MARK S. MULVIHILL, Superintendent, in their official capacity; AIMEE VANNICE, Assistant Superintendent and Director of Human Resources, in their official capacity Defendants - Appellees. Appeal from the United States District Court for the District of Oregon Andrew D. Hallman, Magistrate Judge, Presiding * Argued and Submitted April 13, 2026 Portland, Oregon Filed July 21, 2026 * The parties consented to trying the case before a magistrate judge. See 28 U.S.C. § 636(c). 2 THEIS V. IMESD Before: John B. Owens, Lawrence VanDyke, and Jennifer Sung, Circuit Judges. Opinion by Judge Owens; Dissent by Judge VanDyke SUMMARY ** First Amendment The panel affirmed the district court’s order denying plaintiff Roderick E. Theis II’s motion for a preliminary injunction in his 42 U.S.C. § 1983 action against InterMountain Education Service District (“IMESD”), its Board of Directors, and other officials, alleging that defendants violated his First Amendment rights under the Free Speech Clause by directing him to remove certain books from his offices and by reprimanding him for displaying those books. Theis, a licensed clinical social worker who served as an Education Specialist within the IMESD, displayed two books—He Is He and She Is She—in his office at La Grande Middle School. These books share the themes that gender is binary and cannot be changed. In his Elgin School District office, Theis displayed on his desk a different children’s book—Johnny the Walrus—which allegorically comments on transgender issues. Following a complaint, Theis acknowledged displaying all three books in his offices while ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  THEIS V. IMESD 3 meeting with students on the job, but said that he had never intended to harm anyone and that the books were not hostile. IMESD concluded that Theis’s display of the books constituted a bias incident, directed Theis to stop displaying the books in his school offices, and warned that noncompliance could result in discipline, including termination. The panel held that the district court did not abuse its discretion in denying his motion for a preliminary injunction 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. 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. Because the panel determined Theis’s speech was beyond First Amendment coverage, it did not conduct the Pickering balancing test. The panel distinguished this case from Kennedy v. Bremerton School District, 597 U.S. 507, 509 (2022), because Theis was not engaged in a moment of private expression detached from his role, but rather, he was engaged in his core professional responsibilities. The panel addressed Theis’s additional claims in a concurrently filed memorandum disposition. Dissenting, Judge VanDyke wrote that, like the personal views that Theis’s colleagues were permitted to express in their offices, Theis’s placement of three children’s books as 4 THEIS V. IMESD decorations in his office was his own personal expression, not the government’s. 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. Judge VanDyke further wrote that because Theis’s office decorations related to a matter of public concern and because the record contains no evidence of any disruption to IMESD’s interests that could outweigh Theis’s speech interest, Theis’s expression is protected by the First Amendment under Pickering. COUNSEL Mathew W. Hoffmann (argued), Tyson C. Langhofer, and Matthew C. Ray, Alliance Defending Freedom, Lansdowne, Virginia; David A. Cortman and Travis C. Barham, Alliance Defending Freedom, Lawrenceville, Georgia; John J. Bursch, Alliance Defending Freedom, Washington, D.C.; Rebekah Schultheiss, Law Offices of Rebekah Millard LLC, Springfield, Oregon; for Plaintiff-Appellant. Blake H. Fry (argued) and Janet M. Schroer, Hart Wagner LLP, Portland, Oregon, Defendants-Appellees. Kevin J. Daniel and Gareth A. Bowen, Troxell Leigh PC, Leesburg, Virginia, for Amicus Curiae Parents' Rights in Education. Justin M. Oliveira and Emily Jones, Jones Law Firm PLLC, Billings, Montana, for Amici Curiae Montana First Amendment Society, Montana Public Policy Center, and 1776 Foundation.  THEIS V. IMESD 5 J. Michael Connolly, Cameron T. Norris, and Paul R. Draper, Consovoy McCarthy Park PLLC, Arlington, Virginia, for Amicus Curiae Defending Education. Deborah J. Dewart, Attorney at Law, Hubert, North Carolina, for Amicus Curiae NC Values Institute. Meredith H. Kessler and John A. Meiser, Lindsay and Matt Moroun Religious Liberty Clinic, Notre Dame Law School, Notre Dame, Indiana, for Amicus Curiae Lindsay and Matt Moroun Religious Liberty Clinic. J. Marc Wheat, Advancing American Freedom, Washington, D.C.; Madison Hahn, Young America's Foundation, Reston, Virginia; Celia Howard O'Leary, Southeastern Legal Foundation, Roswell, Georgia; for Amici Curiae Young America's Foundation, Advancing American Freedom, and Southeastern Legal Foundation. 6 THEIS V. IMESD OPINION OWENS, Circuit Judge: Roderick E. Theis II appeals from the district court’s order denying his motion for a preliminary injunction and from the district court’s separate order denying his motion to enforce its partial preliminary injunction. We have jurisdiction under 28 U.S.C. § 1292(a), and we affirm. I. BACKGROUND A. Theis’s Work and His Offices Theis, a licensed clinical social worker, served as an Education Specialist within the InterMountain Education Service District (“IMESD”) for more than fifteen years. In that role, he assessed and supported students’ educational needs for schools in eastern Oregon. His duties included meeting individually with students, administering standardized assessments, preparing reports, and consulting with educators. Theis maintained offices at La Grande Middle School (“La Grande”) and in the Elgin School District (“Elgin”). Students entered these offices for evaluations and standardized testing under his supervision. Although Theis also used the offices for administrative work when students were not present, his workspaces functioned, at least in part, as locations where he interacted directly with students in the course of performing his job duties. Like others who worked at La Grande and Elgin, Theis decorated his office with personal items, which led to this litigation. In his La Grande office, he displayed two books— He Is He and She Is She—on the windowsill behind his desk.  THEIS V. IMESD 7 These books share the themes that gender is binary and cannot be changed. In his Elgin office, Theis displayed on his desk a different children’s book—Johnny the Walrus— which allegorically comments on transgender issues through a story in which the protagonist, Johnny, pretends to be a walrus. Defendants characterize Johnny the Walrus as conveying an anti-transgender message. Theis’s La Grande Middle School office. 8 THEIS V. IMESD Theis’s Elgin School District Office. B. IMESD Policy and Complaints Regarding Theis’s Book Displays To comply with Oregon law, which prohibits discrimination in public education and requires education providers to adopt a policy addressing “bias incidents,” IMESD adopted its “Every Student Belongs” (“ESB”) policy. 1 The policy defines a “bias incident” as a “hostile expression of animus” based on a protected characteristic, including gender identity. The policy also establishes 1 See Or. Rev. Stat. § 659.850 (noting that “[a] person may not be subjected to discrimination in any public . . . service [or] school,” and defining “discrimination” to include differential treatment on the basis of gender identity); see also id. § 339.347(3) (“To comply with the prohibition on discrimination required by [Or. Rev. Stat. § 659.850], each education provider must adopt a policy to address bias incidents”).  THEIS V. IMESD 9 procedures for reporting, investigating, and making findings about whether a bias incident has occurred. In October 2024, IMESD received a complaint about the display of He Is He and She Is She in Theis’s La Grande office. The complaint contended that the book displays were transphobic and a bias incident in violation of the ESB policy, so IMESD initiated an investigation. During a meeting with IMESD officials, Theis acknowledged displaying all three books in his offices while meeting with students on the job, but said that he had never intended to harm anyone and that the books were not hostile. He added that he “might put the books aside” if he knew that a transgender student would be entering his office. In November 2024, IMESD issued a written directive concluding that Theis’s display of the books constituted a bias incident, as it was a “hostile expression of animus” related to gender identity. The directive instructed Theis to stop displaying the books in his school offices, and warned that noncompliance could result in discipline, including termination. The Superintendent and the IMESD Board rejected Theis’s appeals. C. Procedural History In May 2025, Theis filed this action under 42 U.S.C. § 1983 against IMESD, its Board of Directors, and other officials. He alleged that Defendants violated his First Amendment rights under the Free Speech Clause by directing him to remove certain books from his offices and by reprimanding him for displaying those books. 2 Theis 2 Theis raises additional claims, including under the Free Exercise Clause and the Due Process Clause, and Defendants make jurisdictional and mootness arguments. We address those issues in a concurrently filed 10 THEIS V. IMESD sought declaratory and injunctive relief, including permission to display the books. Shortly after filing suit, Theis moved for a preliminary injunction to halt the enforcement of the directive. The district court granted the motion in part and denied it in part, and drew a careful distinction between student-facing settings and those outside the presence of students. Relying on Dodge v. Evergreen School District #114, 56 F.4th 767 (9th Cir. 2022), and Johnson v. Poway Unified School District, 658 F.3d 954 (9th Cir. 2011), the district court concluded that when Theis displayed the books “while engaged in speech that IMESD paid him to produce as an Education Specialist”—for instance, when he administered evaluations to students—he spoke as a public employee, not a private citizen. Therefore, IMESD could prohibit Theis from displaying the books when students were present. But when students were absent, Theis spoke as a private citizen, so his expression received First Amendment protection, and he could display the books. Following the district court’s order, Theis timely appealed from the partial denial of preliminary injunctive relief. After the district court issued its order permitting Theis to display the books only when students were not present, Theis resumed displaying the books. Students entered his office and accessed the books. In at least one instance, Theis discussed the content of the books with students. IMESD initiated a second investigation, concluded that Theis had violated its policies and the terms of the preliminary injunction, and began disciplinary proceedings. Theis then moved in the district court to enforce the preliminary injunction, arguing that the proposed discipline memorandum disposition. In both this opinion and the memorandum disposition, we affirm.  THEIS V. IMESD 11 violated the court’s order. The district court denied that motion, concluding that the injunction did not protect Theis’s display of the books in the presence of students and therefore did not bar discipline for that conduct. IMESD subsequently terminated Theis’s employment. Theis filed a second appeal challenging the denial of his motion to enforce the preliminary injunction. Both appeals are before this court. II. DISCUSSION A. Standard of Review We review a district court’s denial of a preliminary injunction for abuse of discretion. Harris v. Muhammad, 165 F.4th 1345, 1350 (9th Cir. 2026). “The abuse of discretion standard is highly deferential to the district court.” Betschart v. Oregon, 103 F.4th 607, 616 (9th Cir. 2024) (quotation marks and citation omitted). We review the district court’s underlying legal conclusions de novo and its factual findings for clear error. Id. B. There Was No First Amendment Violation 1. Theis Spoke as Part of His Official Duties For decades, circuit courts have uniformly rejected First Amendment arguments like Theis’s. “[N]o court has found that teachers’ First Amendment rights extend to choosing their own curriculum or classroom management techniques in contravention of school policy or dictates.” Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1176 (3d. Cir. 1990). As then-Judge Alito explained, although an instructor “has a right to advocate outside of the classroom for the use of certain curriculum materials, he does not have a right to use those materials in the classroom.” Edwards v. 12 THEIS V. IMESD Cal. Univ. of Pa., 156 F.3d 488, 492 (3d. Cir. 1998); see also Ahern v. Bd. of Educ. of Sch. Dist. of Grand Island, 456 F.2d 399, 403 (8th Cir. 1972) (holding that a teacher has no First Amendment right to “persist in a course of teaching behavior which contravened the valid dictates of her employers, the public school board, regarding classroom method”); Adams v. Campbell Cnty. Sch. Dist., 511 F.2d 1242, 1247 (10th Cir. 1975) (“We have found no law which allows a high school teacher to have the broad latitude” to instruct in conflict with official school curriculum). In 2006, the Supreme Court made clear that the First Amendment protects a public employee’s speech only when he speaks as a citizen, rather than as part of his official duties. See Garcetti v. Ceballos, 547 U.S. 410, 417–21 (2006). When a public employee makes statements “pursuant to [his] official duties,” he does not speak as a citizen for First Amendment purposes, and “the Constitution does not insulate [that] communication[] from employer discipline.” Id. at 421. We employ a “practical” and “fact-intensive” inquiry to determine whether speech is made pursuant to official duties. Dahlia v. Rodriguez, 735 F.3d 1060, 1074–76 (9th Cir. 2013) (en banc). Theis “bears the burden of showing [that] the speech was spoken in the capacity of a private citizen and not a public employee.” Eng v. Cooley, 554 F.3d 1062, 1071 (9th Cir. 2009). He has not met his burden here. First, Theis’s speech occurred within the scope of his professional role. It was confined to the environments—his offices—in which he was assigned to perform his duties and to times when he was with students. And Theis does not dispute that his speech was aimed at students. This case is therefore distinguishable from those in which a school  THEIS V. IMESD 13 employee engages in the challenged speech off school grounds or while performing tasks unrelated to the school’s ordinary operations, and from cases in which the employee does not direct his speech to students. See Dodge, 56 F.4th at 778 (holding that a teacher’s decision to wear a “Make America Great Again” hat at a teacher-only training was private speech because he did not wear it in school with students). Second, and most importantly, Theis’s speech “owes its existence to his position” in the IMESD schools. Johnson, 658 F.3d at 967. Theis displayed the books in his offices where he interacted with students as part of his assigned duties, and the displays were visible to those students during evaluations and meetings. In Johnson, we held that a teacher’s classroom expression constituted government speech because it occurred in a setting where the public employer “hires that speech,” thereby retaining authority over the message conveyed to students. Id. at 967–68 (citation omitted). Like the teacher in Johnson, Theis was in a position to speak to students as an authority figure only because the school “hire[d his] speech”; indeed, “[a]n ordinary citizen could not have walked into [Theis’s office] and decorated the walls as he . . . saw fit.” Id. at 966, 968. And as we explained in Johnson and reaffirmed in Dodge, speech directed at students within a school setting “in a capacity one might reasonably view as official” is speech undertaken as part of a public employee’s official duties. Id. See also Dodge, 56 F.4th at 778 (That the challenged speech did not take place “in school with students . . . distinguishes this case from other cases involving speech in schools where the speech was reasonably viewed by students and parents as officially promoted by the school.”). 14 THEIS V. IMESD Other circuits have reached the same conclusion with striking consistency. The Seventh Circuit has explained that in the K–12 setting, “[e]xpression is a teacher’s stock in trade, the commodity she sells to her employer in exchange for a salary”; accordingly, “the school system does not ‘regulate’ teachers’ speech as much as it hires that speech.” Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 479 (7th Cir. 2007) (emphasis in original). “The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials.” Id. at 480. The Sixth Circuit has similarly held that a teacher’s classroom expression is speech pursuant to professional duties, and is thus not covered by the First Amendment. Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332, 340–41 (6th Cir. 2010). More recently, the Eleventh Circuit confirmed that when a public-school employee speaks “in the course of performing [one’s] job,” including in interactions with students, that employee does so “as a government employee, not a citizen.” Wood v. Fla. Dep’t of Educ., 142 F.4th 1286, 1291–92 (11th Cir. 2025) (internal quotation marks and citation omitted). These dictates apply to visual displays as well as to spoken speech. See Johnson, 658 F.3d at 967–68 (classroom banners); Lee v. York Cnty. Sch. Div., 484 F.3d 687, 694 (4th Cir. 2007) (classroom bulletin boards). And it makes no difference that the displays appeared in offices rather than classrooms. Theis does not dispute that speech may be curricular so long as it is delivered by public-school employees and “designed to impart particular knowledge or skills to student participants and audiences.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988). These cases reflect a settled principle: when a public education employee communicates messages to students in  THEIS V. IMESD 15 a pedagogical or evaluative setting, he is performing the work he was hired to do. Indeed, the idea that the First Amendment leaves the government completely “power[less] to restrict expression because of its messages, its ideas, its subject matter, or its content” does not apply in public schools, where “some higher degree of content regulation is a necessity” for government institutions to function. Leslie Kendrick, Content Discrimination Revisited, 98 Va. L. Rev. 231, 235–36 (2012) (quoting Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). Taken together, these factors confirm that Theis’s speech “owe[d] its existence” to his professional responsibilities and was undertaken as part of the work he was paid to perform. Garcetti, 547 U.S. at 421. 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. 3 As such, Theis’s speech falls outside the First Amendment’s ambit. 2. The Effect of Kennedy v. Bremerton Theis and the dissent contend that Kennedy v. Bremerton School District, 597 U.S. 507, 509 (2022), which held that a football coach’s brief, postgame prayer on the field constituted private expression outside the scope of his professional duties, effectively overruled our decision in Johnson, 658 F.3d 954 (9th Cir. 2011), and dramatically 3 Because Theis’s speech was beyond the First Amendment’s coverage, we need not determine whether Defendants’ interests as a public employer in regulating workplace conduct and preventing disruption outweighed Theis’s First Amendment interests under Pickering balancing. See Eng, 552 F.3d at 1071; see also Pickering v. Bd. of Educ., 391 U.S. 563, 588 (1968). 16 THEIS V. IMESD changed how we analyze public-school teacher speech. It did not. The Supreme Court in Kennedy was careful to limit the scope of its holding. It repeatedly emphasized that Coach Kennedy’s prayer occurred when he was not engaged in his official duties, not instructing or supervising students, and not speaking in a manner that could reasonably be attributed to the school. 597 U.S. at 509. The Court described the relevant conduct as a “brief, quiet, personal religious observance” undertaken after the conclusion of his professional responsibilities. Id. at 543; see also Wood, 142 F.4th at 1293 (describing Coach Kennedy as “off the clock” when he prayed). Critically, the Court distinguished Coach Kennedy’s prayer from situations in which a public-school employee is actively “engaged in . . . duties as a coach” or is otherwise interacting with students in a professional capacity. 597 U.S. at 529. This case is different. Theis’s display of books occurred in the course of performing his assigned duties and in a setting where he was responsible for interacting directly with his students. Unlike Coach Kennedy, who was off the clock, Theis was not engaged in a moment of private expression detached from his role. To the contrary, he was engaged in his core professional responsibilities. Courts applying Kennedy agree that it did not unsettle the longstanding rule that speech directed at students within the four walls of an educational, K–12 setting is undertaken pursuant to a public employee’s duties. We have continued to cite Johnson approvingly even after Kennedy. See Dodge, 56 F.4th at 774, 777–78. In Wood, the Eleventh Circuit squarely addressed whether a teacher’s in-class speech fell within Kennedy’s—and the First Amendment’s—protection,  THEIS V. IMESD 17 and concluded that it did not. 142 F.4th at 1290. Writing for the majority, Judge Newsom relied on Johnson to hold that when a public-school teacher speaks “in the course of performing [his] job,” including in interactions with students in class, that person does so “as a government employee, not a citizen.” Id. at 1291–92. Accordingly, Kennedy and its unique facts do not alter the analysis here. “Kennedy clearly established that school officials may not impose categorical, visibility-based restrictions on an employee’s private religious expression or exercise outside official duties.” Barber v. Rounds, 169 F.4th 577, 584 (5th Cir. 2026) (emphasis added). Where a school employee’s speech occurs in a student-facing setting and in the course of performing assigned duties, it remains subject to employer control under Garcetti and its progeny. See Johnson, 658 F.3d at 967–68; Mayer, 474 F.3d at 479; Evans-Marshall, 624 F.3d at 340–41; Wood, 142 F.4th at 1293. “The common thread through all of these cases is that, when it comes to in-class curricular speech at the primary or secondary school level, no other court of appeals has held that such speech is protected by the First Amendment.” Evans-Marshall, 624 F.3d at 343. To hold otherwise would depart, without purpose or principle, from a uniform consensus among the federal appellate courts on this question. Nothing in Kennedy suggests such a sharp U-turn in our law. By overreading Kennedy and closing its eyes to over fifty years of precedent from the Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits that clearly answers the question before us, the dissent—despite its length—is cheap 18 THEIS V. IMESD cotton candy: a lot of fluff but ultimately no real substance. 4 Under Garcetti, if an employee is on the clock, then the school district, not the employee, decides what he can or cannot say to students, even if private citizens may object to the messages that the government permits or prohibits. Garcetti, 547 U.S. at 421. III. CONCLUSION Because Theis’s complaint is ultimately “nothing more than an ordinary employment dispute, it does not constitute protected speech and has no First Amendment protection.” Boring v. Buncombe Cnty. Bd. of Educ., 136 F.3d 364, 369 (4th Cir. 1998) (en banc). The district court correctly applied Garcetti and our precedents, and its factual determinations are supported by the record. A plaintiff seeking a preliminary injunction must establish, among other things, a likelihood of success on the merits. Winter v. Nat. Res. Def. 4 The dissent’s reliance on Justice Powell’s plurality opinion in Regents of California v. Bakke, 438 U.S. 265, 312 (1978), is perhaps the most perplexing. Bakke concerned the affirmative action admissions policy at the University of California at Davis. Id. at 269. And courts have long distinguished the First Amendment principles at universities from those at K–12 public schools. Compare Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (holding that a state investigation into the contents of a scholar’s lectures “unquestionably was an invasion of [his] liberties in the areas of academic freedom and political expression—areas in which government should be extremely reticent to tread,” as “[t]he essentiality of freedom in the community of American universities is almost self- evident”), with Mayer, 474 F.3d at 480 (holding that the First Amendment “does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system”). Citing Bakke—which was effectively overruled by Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023) and which has nothing to do with this matter—rather than engaging with any of the cases that squarely address the question presented in this case, says it all.  THEIS V. IMESD 19 Council, Inc., 555 U.S. 7, 20 (2008). In light of 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, it is clear that the district court did not abuse its discretion in denying the motion for a preliminary injunction. AFFIRMED. VANDYKE, Circuit Judge, dissenting: 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? Could public school administrators establish a policy allowing office decoration with partisan political messages deemed sufficiently “compassionate,” but prohibit—as inherently “hostile”—any political speech that did not align with the Democratic Socialists of America platform? Could teachers be encouraged to wear large, red pins reading “Make America Great Again” during all student interactions—but only those pins? If your instinctual answer to each of these questions is “No!” … you might be an everyday American. But according to the majority today, you vastly overestimate the First Amendment’s guarantee of free speech in our nation’s schools. In a decision that is irreconcilable with Supreme Court precedent, the majority announces an expansive new rule that all expression by public-school employees that might be observed by students is necessarily government speech, and not the personal speech of an American 20 THEIS V. IMESD citizen—even when any reasonable observer would perceive the speech as the employees’ own personal expression. So you 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. According to the majority, this remarkable distortion of reality is the natural consequence of our court’s Free Speech jurisprudence. And because the government’s own speech “falls outside the First Amendment’s ambit,” the Constitution presents no barrier to school administrators allowing our nation’s teachers to bedeck themselves and their offices with personal Intifada banners, DSA slogans, or MAGA pins. But not with 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 hypotheticals above shock the American conscience because exactly no one believes the majority’s legal fiction—that anything seen by students on school grounds is necessarily government speech or perceived as such. When a student sees personal materials hanging in a teacher’s office, they naturally identify that ornamentation as reflecting the teacher’s own personal views. Indeed, that is precisely why some teachers might object at the prospect of wearing MAGA pins in class—because they reasonably anticipate being perceived as personally endorsing a viewpoint they oppose. Students walking down a school hallway and seeing teachers’ offices decorated only with the DSA’s agenda would naturally conclude that all their teachers personally supported the DSA, not that the school had forbidden all rival expression. A free and open American society appropriately recoils at the prospect of  THEIS V. IMESD 21 public-school teachers becoming involuntarily conscripted apparatchiks of any administration’s particular orthodoxy. Thankfully, the First Amendment is not actually the hollow promise to school employees that the majority reimagines in this case. Consistent with what everyone already naturally recognizes, the Supreme Court has made clear that the mere presence of students does not automatically transform all personal speech by government employees into government speech, and that school employees thus retain their rights to free, personal expression behind the schoolhouse gate. Instead, a specific and fact-intensive inquiry is required to determine if a school employee’s speech is a personal expression or speech on behalf of the state. And while not all private speech is protected within the school context, school officials’ distaste for a personal viewpoint can never provide an adequate justification for censorship. This case sadly illustrates that when courts warp the distinction between personal speech and government speech, two equally bad things happen: school employees are functionally deprived of the promises of the First Amendment and students are fundamentally misled about many of the most contested issues facing our society today. When courts inappropriately allow the government’s claimed interest in the efficient operation of a school 1 to 1 I say “claimed interest” because, as will become evident below, it seems most likely that the school officials’ real interest in censoring Mr. Theis’s personal speech in this case is not efficiency or anything similarly benign, but rather something much more nefarious: to give children the false impression that all the adults in the school personally share the same woke perspective on some or all of the most disputed questions in our culture today. This is extremely concerning, and one glaring practical problem with the majority’s misguided expansion of the 22 THEIS V. IMESD trump government employees’ interests in personal speech, they equip school administrators to exercise viewpoint discrimination while regulating employee speech. Such consequences are abhorrent to our constitutional order and inconsistent with the Supreme Court’s long-established caselaw. I. Roderick Theis is a licensed clinical social worker who served as an Educational Specialist in eastern Oregon’s InterMountain Education Service District (“IMESD”) for more than fifteen years. Theis did not teach in a classroom but maintained offices in three schools, where he performed desk work and sometimes met with students to assess their educational needs. IMESD employees “commonly decorate their offices with paintings, personal photos … posters, inspirational quotes, books, and other items.” Staff decorations include endorsements of unions and politically active nonprofit organizations, gay pride flags, and Black Lives Matter posters. During the 2022-2023 and 2023-2024 school years, Theis displayed a book, Johnny the Walrus by Matt Walsh, as a decoration in his Union School District office. The book’s front cover displays illustrations of a boy and a walrus, and the back cover bears the tagline: “a tale of identity and imagination.” During the 2024-2025 school year, Theis also placed Johnny the Walrus as a decoration in his Elgin School District office. Theis never used or government speech doctrine in this context. But ultimately, the majority’s First Amendment analysis is flawed even if we are willing to ignore the reality of what is likely really going on in cases like this.  THEIS V. IMESD 23 referenced the decorative book during his work as an Educational Specialist. During the three years Johnny the Walrus sat in Theis’s office, there was functionally no reaction. One student once asked Theis about the book. In October 2024, Theis placed two books as decorations in his office at La Grande Middle School, He is He and She is She by Ryan and Bethany Bomberger. The books’ covers display “illustrations of a smiling boy and girl, respectively, along with the tagline ‘a book about your identity.’” Theis never used or referenced either decorative book during his work as an Educational Specialist. Theis evaluated a total of four students while these two books were displayed in his La Grande office. “No student or staff members asked about those books or commented on them, no student was ‘visibly upset or distracted by’ them, and no one handled or read either of them.” Three weeks later, the La Grande Middle School Principal instructed Theis to “place the books out of sight.” The principal explained that a La Grande teacher “had seen the books in [Theis’s] office, researched them online, and then determined they were offensive.” After reviewing the books, the principal “said he did not find anything offensive or inappropriate about them,” but expressed concern that they “could be considered pushing a certain point of view on a student” and therefore requested that Theis remove the books “to maintain the neutrality at school.” The next day, Theis was informed that a school employee had filed a bias incident complaint against Theis based on his display of the books. One month later, Theis received a final determination that his display of the books constituted ‘a hostile expression of animus toward another person relating to their actual or perceived gender identity.” 24 THEIS V. IMESD Theis appealed this determination to IMESD’s superintendent. Theis’s appeal was denied on the basis that “the books promote a binary view of gender, which excludes and invalidates an understanding of gender diversity and transgender students, staff, and others.” Theis’s further appeal to IMESD’s Board was denied. In May 2025, Theis filed suit under 42 U.S.C. § 1983 alleging that IMESD and various officials had violated his First Amendment Free Speech rights by ordering him to remove the books from his office. Theis sought declaratory and injunctive relief allowing him to display the books. The district court concluded that Theis’s office decorations were his own constitutionally protected personal expressions when no students were present, but government speech “during testing sessions and interactions with students.” Accordingly, the district court granted Theis a partial injunction allowing him to display the books when students were absent. Two days after the court issued its partial injunction, four eighth graders entered Theis’s office before school began and directly requested to see the books. Theis asked who the students were and attempted to “redirect” them. The students persisted and Theis, operating on the assumption that the injunction allowed him to display the books when he “was not working with the [students] in [his] official duties,” eventually allowed them to view the books. Perhaps coincidently, a La Grande teacher then walked by Theis’s office and recorded a video of the students reading the books. The teacher subsequently filed a complaint against Theis, stating that she had video footage of him allowing students to read the books in his office.  THEIS V. IMESD 25 IMESD investigated the complaint. Theis was subsequently placed on administrative leave and then terminated. This appeal followed. II. The Supreme Court has long recognized that the First Amendment is of paramount importance to our nation’s public schools. “The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’” Regents of Univ. of California v. Bakke, 438 U.S. 265, 312 (1978) (opinion of Powell, J.) (alteration in original) (quoting United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943), aff’d, 326 U.S. 1 (1945)). Accordingly, teachers, coaches, and other public-school employe