A social worker who was fired for displaying books that were considered “anti-transgender” is not protected by the First Amendment, the 9th Circuit Court of Appeals ruled.
Roderick Theis II worked for the Intermountain Education Service District in Oregon as a social worker and education specialist for over 15 years.
In his middle school office, he displayed a pair of books: “He Is He” and “She Is She” by Ryan and Bethany Bomberger.
Theis also had an office in the school district building, where he displayed “Johnny the Walrus” – the story of a boy who pretends to be a walrus.
The school district received a complaint that the books contained anti-transgender messages, which would violate its “Every Student Belongs” policy.
The district ordered Theis to stop displaying the books. He responded by filing a lawsuit, claiming violation of his First Amendment rights.
The Oregon federal court ruled that Theis could only display the books when students were not in the office. Students did end up looking at the books and discussing them with Theis, so the district fired him.
The 9th Circuit Judge John Owens agreed with the district court that Theis’s display of the books was not protected, “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.”
“His speech occurred in the course of those responsibilities and cannot be meaningfully separated from them,” Owens added. “As such, Theis’s speech falls outside the First Amendment’s ambit.”
Judge Lawrence VanDyke wrote a dissenting opinion.
“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,” he wrote.
“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,” the judge added.
