In Theis v. Intermountain Education Service District Board of Directors, (9th Cir., July 21, 2026), the U.S. 9th Circuit Court of Appeals in a 2-1 decision upheld an Oregon federal district court's determination that a school district could bar a school social worker from displaying, when students are in his office, books that the school found to be hostile toward transgender individuals. The majority held that plaintiff's display was not protected by the First Amendment because it is government speech. The court said in part:
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 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....
Second, and most importantly, Theis’s speech “owes its existence to his position” in the IMESD schools.... 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...
This case is different [from the Supreme Court case of Kennedy v. Bremerton]. 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....
Judge VanDyke filed a dissenting opinion, saying in part:
... [E]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.... 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....
The fact that Theis’s speech was private expression does not render it immune from government regulation. When a government employee speaks in his personal capacity, he can only invoke the protections of the First Amendment if he can show that he spoke “on a matter of public concern.”... If this burden is met, courts engage in “a delicate balancing of the competing interests ... [to determine] whether an employee’s speech interests are outweighed by “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
... [I]n this case, nothing could support the conclusion that the government’s interest in efficiently operating its public schools outweighed Theis’s speech interest.... [A]fter three years of Theis’s use of the books in decorating his office, the record contains no evidence whatsoever of “actual, material, and substantial disruption” in the school.... The only negative reaction to the books... all originated from a single, adult teacher who saw “the books in [Theis’s] office, researched them online, and then determined they were offensive.”...
[Thanks to Thomas Rutledge for the lead.]