Teacher who Displayed Matt Wash's Anti-trans Book and Got Fired looses Appeal

Matt Walsh | Screensho

John Russell

LGBTQNation

An Oregon education specialist who sued his school district after he was ordered to remove anti-trans children’s books from his office lost his appeal this week.

In its 2-1 decision on Tuesday, a three-judge panel for the U.S. Court of Appeals for the Ninth Circuit upheld a previous district court order denying Roderick Theis’ request for a preliminary injunction in his First Amendment lawsuit against InterMountain Education Service District (IMESD).

 

A licensed clinical social worker who served as an education specialist with the district, Theis displayed the books He is He and She is She in his office at La Grande Middle School and anti-trans provocateur Matt Walsh’s Johnny the Walrus in his Elgin School District office beginning in 2024. Photos included in court documents show the books prominently displayed in the otherwise sparsely decorated offices. In his July 21 opinion, Circuit Judge John B. Owens described He is He and She is She as sharing “the themes that gender is binary and cannot be changed” and Walsh’s book as an allegorical comment on transgender issues.

Following a complaint about the presence of the books in his La Grande Middle School office when meeting with students, IMESD concluded that displaying the books constituted a bias incident in violation of its “Every Student Belongs” policy, adopted under Oregon law prohibiting discrimination in public education. The district ordered Theis to stop displaying the books, warning him that if he did not comply, he could face disciplinary action, including termination.

Last May, Theis, represented by lawyers from anti-LGBTQ+ legal advocacy group Alliance Defending Freedom (ADF), sued the district, alleging it had violated his First Amendment right to free speech. District court judge Andrew D. Hallman granted Theis’ request for a preliminary injunction in part, allowing him to display the books in his office only when students were not present. Theis resumed displaying the books, and a subsequent IMESD investigation found that students had accessed the books and that Theis had discussed their contents with them in violation of both district policy and the terms of the preliminary injunction. Theis was subsequently fired.

Theis appealed Hallman’s ruling that displaying the books “while engaged in speech that IMESD paid him to produce” did not constitute First Amendment-protected speech.

In its decision upholding the lower court ruling this week, the Ninth Circuit cited “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.”

Writing for the majority, Owens said that the Supreme Court’s 2022 ruling in Kennedy v. Bremerton School District – a case where the Court sided with a coach who led a prayer after football games – does not apply to Theis’ case because he was not “engaged in a moment of private expression detached from his role” but was in fact “engaged in his core professional responsibilities” when the books were displayed.

Following Tuesday’s decision, a spokesperson for ADF told MS Now that the organization is “evaluating our next steps,” but that it would “continue to defend Rod’s First Amendment freedom to express his views like other employees.”