Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—9th Cir.: School district employee’s anti-transgender book display was not protected speech, (Jul 22, 2026)

By Kathleen Kapusta, J.D.

“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.”

Explaining that a school district employee’s display in his offices of books with an anti-transgender message occurred in the course of performing his assigned duties and in a setting where he was responsible for interacting directly with his students, a divided Ninth Circuit found he spoke not as a private citizen but as a government employee and thus his speech was not protected by the First Amendment. Accordingly, the district court did not abuse its discretion in denying the employee’s motion for a preliminary injunction to halt the enforcement of a directive requiring him to remove the books from his office when students were present. Dissenting, Judge VanDyke argued that 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 citizen—even when any reasonable observer would perceive the speech as the employees’ own personal expression” (Theis v. InterMountain Education Service District—Board of Directors, Nos. 25-5641 and 25-8039 (9th Cir. July 21, 2026)).

As an educational specialist with the InterMountain Education Service District, the employee met individually with students, administered standardized assessments, prepared reports, and consulted with educators. He had two offices, including one in a middle school, where students came for evaluations and standardized testing under his supervision. He also used the offices for administrative work when students were not present.

Book display. In his middle school office, the employee displayed on the windowsill behind his desk two books—He Is He and She Is She—which share the themes that gender is binary and cannot be changed. In his other office, he displayed a children’s book entitled Johnny the Walrus, which the district characterized as conveying an anti-transgender message.

Bias incident. In compliance with Oregon law, the district adopted a policy addressing “bias incidents,” which it defined as hostile expressions of animus based on a protected characteristic, including gender identity. When the district received a complaint that the employee’s books in his middle school office were transphobic and a bias incident, it determined that the book display was a “hostile expression of animus” related to gender identity, directed him to stop displaying the books in his school offices, and warned that noncompliance could result in discipline.

Procedural history. The employee sued the district and several individual defendants under Section 1983 alleging that they violated his First Amendment free speech rights by directing him to remove the books from his offices and by reprimanding him for displaying the books. He moved for a preliminary injunction, which the district court granted in part. The district court found that when he displayed the books while engaged in speech the school district paid him to produce as an education specialist he spoke as a public employee and the school district could prohibit him from displaying the books when students were present. When students were absent, however, the court found he spoke as a private citizen, so his expression received First Amendment protection, and he could display the books.

The employee appealed the partial denial of his preliminary injunction and resumed displaying the books, including when students were present. Concluding that he violated its policy, the district began disciplinary proceedings. The employee moved to enforce the preliminary injunction and the court, denying his motion, found the injunction did not protect his display of the books in the presence of students. The district then fired the employee, and he filed a second appeal challenging the denial of his motion to enforce the preliminary injunction.

Professional role. Noting that the Supreme Court, in 2006, made clear that the First Amendment protects a public employee’s speech only when the employee speaks as a citizen, rather than as part of his official duties, the Ninth Circuit found the employee’s speech here occurred within the scope of his professional role. It was confined to his offices where he performed his duties and to times when he was with students.

More importantly, said the court, his speech “owes its existence to his position” in the district’s schools. He 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.

Johnson. In its 2011 decision in Johnson v. Poway Unified School District, the court observed, it 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. Like the teacher in Johnson, the court reasoned, “the employee 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 [his office] and decorated the walls as he... saw fit.’”

Noting that other circuits have reached the same conclusion with striking consistency, the court explained that “these cases reflect a settled principle: when a public education employee communicates messages to students in a pedagogical or evaluative setting, he is performing the work he was hired to do.” Noting that the employee was assigned to work in school offices, met with students, and carried out his duties in that setting, the court found his speech occurred in the course of those responsibilities could not be meaningfully separated from them. As such, his speech fell outside the First Amendment’s protection.

Kennedy. While the employee and dissent argued that the U.S. Supreme Court’s 2022 Kennedy v. Bremerton School District decision—which held that a high school football coach’s brief, postgame prayer on the field constituted private expression outside the scope of his professional duties—effectively overruled Johnson, the appeals court disagreed. The Kennedy Court, the appeals court observed, “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.” Here, in contrast, the employee’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.

Cheap cotton candy. “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,” the Ninth Circuit emphasized, noting that it has continued to cite Johnson approvingly even after Kennedy. “By overreading Kennedy, the court continued, “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 cotton candy: a lot of fluff but ultimately no real substance.”

Noting 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,” the Ninth Circuit found the district court did not abuse its discretion in denying the motion for a preliminary injunction.

Dissent. In a lengthy dissent, Judge VanDyke argued that the majority’s decision was irreconcilable with Supreme Court precedent. The First Amendment, he asserted, “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.”

Explaining that 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, Judge VanDyke noted that “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.”

Citing Kennedy, he argued that the “promise that public-school employees do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate’ is rooted in our nation’s recognition of ‘the necessity for informed, vibrant dialogue in a democratic society.’”

“Because [the employee’s] office decorations related to a matter of public concern,” wrote VanDyke, “and because the record contains no evidence of a threat to IMESD’s interests that could outweigh [his] speech interest, [his] expression is protected by the First Amendment. This is not that hard of a case.”

The case is Nos. 25-5641 and 25-8039.

Judge: Owens, J.

Attorneys: Matthew W. Hoffmann (Alliance Defending Freedom) and Rebekah Schultheiss (Law Offices of Rebekah Millard) for Roderick E. Theis, II. Blake H. Fry (Hart Wagner) for InterMountain Education Service District - Board of Directors, Mark S. Mulvihill, and Aimee Vannice.

Companies: InterMountain Education Service District—Board of Directors

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