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.

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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 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.

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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.

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Because the panel determined Theis’s speech was beyond First Amendment coverage, it did not conduct the Pickering balancing test.

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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.

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The panel addressed Theis’s additional claims in a concurrently filed memorandum disposition.

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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 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.

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https://cdn.ca9.uscourts.gov/datastore/opinions/2026/07/21/25-5641.pdf