Theis: The Majority Treated Student-Facing Office Displays as Official Speech

A school employee’s choice to display a personal book can become a dispute about whose message the employee is conveying. In Theis v. InterMountain Education Service District, Nos. 25-5641 and 25-8039 (9th Cir. July 21, 2026), a divided panel treated an education specialist’s student-facing book displays as speech made through his professional role. The majority upheld the denial of preliminary relief on the free-speech claim. Judge VanDyke dissented, arguing that personal office decorations remained private expression under the Supreme Court’s school-speech decisions.

The procedural result requires reading both documents the court issued. The published opinion explains the speech ruling. A companion memorandum affirms the partial denial of a preliminary injunction in No. 25-5641 but dismisses the separate enforcement-order appeal in No. 25-8039 for lack of appellate jurisdiction. Those are different dispositions with different reasons.

The dispute concerned displays in offices used to evaluate students

Roderick Theis, a licensed clinical social worker, had worked as an education specialist for more than fifteen years. His duties included student assessments, individual meetings, reports and consultation with educators. Students entered his school offices for evaluations and standardized testing. He also used those spaces for administrative work without students present.

He displayed He Is He and She Is She in one office and Johnny the Walrus in another. The books addressed gender and identity. After a complaint, the district investigated under its “Every Student Belongs” policy and concluded that the displays constituted a prohibited bias incident. A November 2024 directive required removal and warned of discipline, including termination, for noncompliance.

The district court partly granted Theis’s request for a preliminary injunction. It protected the displays when students were absent but allowed the district to prohibit them during student-facing work. After students subsequently viewed the books in his office, the district investigated again and pursued discipline. Theis asked the court to enforce the injunction against that discipline. The court denied the request, and the district later terminated him. The appeals concerned the partial injunction and its enforcement, rather than a final trial judgment resolving the entire employment dispute.

The majority classified the student-facing display as official-duty speech

Under Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), speech made pursuant to a public employee’s official duties generally falls outside the employee’s Free Speech Clause protection. The Ninth Circuit described the inquiry as practical and fact intensive. It focused on what Theis was doing, where he was assigned to do it and the audience he was addressing.

The majority emphasized that the displays appeared in offices where Theis met and evaluated students and were visible during those interactions. It also stated that he did not dispute that the speech was aimed at students. The school’s employment of him placed him in that position of authority. Applying Johnson v. Poway Unified School District, 658 F.3d 954, 967–968 (9th Cir. 2011), the majority treated the message as part of the work the school hired him to perform.

The comparison with Dodge v. Evergreen School District #114, 56 F.4th 767, 778 (9th Cir. 2022), helped explain the audience distinction. Dodge concerned a teacher’s political hat at a teacher-only training, rather than speech directed at students during the employee’s assigned student work. The majority treated that difference as significant to the official-duty inquiry.

Theis relied on Kennedy v. Bremerton School District, 597 U.S. 507 (2022), involving a coach’s personal postgame prayer. The majority distinguished the prayer from Theis’s display during professional interactions with students. It concluded that Kennedy had not displaced the circuit’s rule governing speech undertaken as part of assigned K–12 duties.

That threshold conclusion determined the majority’s route through the case. In footnote 3, it expressly declined to conduct the separate Pickering balance between the employee’s speech interest and the employer’s operational interests because it had already classified the speech as official-duty expression. The absence of a majority balancing analysis followed from that actual ruling.

The dissent disputed the classification and the reading of Kennedy

Judge VanDyke viewed the books as personal decorations comparable to colleagues’ flags, posters and other office items. He argued that their visibility to students did not make them the government’s message. In his reading, Kennedy required a more particular inquiry into whether the expression itself was ordinarily part of the employee’s duties.

The dissent also gave a different account of the record’s significance. It stressed that the books were not used in Theis’s evaluations and that personal expression by other staff was permitted. Treating the displays as private speech on a matter of public concern, it would have applied Pickering and found the district’s disruption showing inadequate. Those conclusions explain the disagreement; the majority’s official-duty analysis supplied the panel’s governing free-speech ruling.

The companion memorandum separates the injunction ruling from the enforcement appeal

The memorandum rejected the district’s argument that termination alone made the appeals moot. Effective relief, including potential reinstatement or removal of adverse employment entries, remained possible. A worker’s loss of access to the office therefore did not end the court’s inquiry.

But the second appeal failed for a different reason. The district court’s enforcement order interpreted the existing injunction without changing its terms. Under the interlocutory-appeal rule the panel applied, that interpretation was not immediately appealable as an order granting, denying or modifying an injunction. The panel dismissed No. 25-8039 for lack of jurisdiction.

In No. 25-5641, the memorandum also rejected the preliminary showing on free exercise and due process. It treated the policy as neutral and generally applicable on this record and found adequate notice and opportunity to respond through the investigation and appeals. In a partial concurrence, Judge VanDyke agreed with the mootness and appellate-jurisdiction conclusions but would not have reached those other constitutional claims because he would have ruled for Theis on free speech.

For a current dispute, identify the expression and the order being challenged

The published Ninth Circuit opinion supplies a regional appellate rule about student-facing official-duty speech. Its preliminary-injunction posture, the employee’s actual responsibilities and the majority–dissent disagreement all matter when comparing another situation. A personal item’s ownership alone does not answer how a court will classify its display.

Our guide to a school employee’s office-display dispute focuses on the actual assignment, audience and governing directive. For a different issue involving off-duty online expression, see our public-employee social-media guide. The employment team can review the display record, disciplinary notices and exact court orders to identify the claim and relief actually at stake.