Oregon school counselor loses First Amendment fight over book display
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A federal appeals court ruled earlier this week that a now-fired Oregon school counselor’s display of books to students that promoted binary views of gender was not protected by the First Amendment.
A 2-1 decision by the 9th U.S. Circuit Court of Appeals on Tuesday upheld the termination of Roderick E. Theis II from Oregon’s InterMountain Educational Service District (IMESD). according to court documents Obtained by Fox News Digital.
The court also rejected Theis’ appeal.
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Security guards stand outside the Ninth U.S. Circuit Court of Appeals in San Francisco, California, on June 12, 2017. (Getty Images)
According to the decision, Theis, an education specialist who has been working at IMESD for more than 15 years, exhibited books titled “He is He” and “She is She” in two separate offices on different campuses when he met with secondary school students.
Also on display was a children’s book by conservative commentator Matt Walsh titled “Johnny the Walrus,” which “makes allegorical comments about transgender issues,” court documents said.
Following an investigation into the incident, Theis told school administrators that he did not intend to cause any harm by displaying the books, and that he even considered removing the books when students who identified as transgender came to his office.
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InterMountain Educational Service Area in Oregon, where Roderick E. Theis II worked as an education specialist serving middle school students for more than 15 years. (Google Maps)
But IMESD concluded that the display of the books was a “bias incident” and instructed the consultant to remove the books from school offices – or risk dismissal.
A federal judge later partially granted Theis’ request for a protective order allowing him to continue displaying the books in his offices when students weren’t visiting, but he was terminated after a district investigation revealed Theis had provided the books to middle school students who wanted to see them, according to the ruling.
Theis’ lawyers argued that the counselor was protected from the injunction when he met with students outside of their formal sessions, but a lower court later ruled that the partial injunction prohibited Theis from displaying the books while the students were in his office.
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The U.S. 9th Circuit Court of Appeals upheld the dismissal of Oregon school counselor Roderick E. Theis II for displaying books to middle school students that promoted binary views of gender. (iStock)
However, the lower court issued another ruling against Theis’ termination objection.
The decision was upheld Tuesday by the 9th U.S. Circuit Court of Appeals, and the majority opinion summarized longstanding precedent that speech spoken by educators when interacting with students is considered government speech.
“As a government employee, Theis was assigned to work in school offices, meet with students, and carry out his duties in that environment,” Circuit Judge John B. Owens wrote in the majority decision. “His speech occurred in the course of those responsibilities and cannot be meaningfully separated from them. Therefore, Theis’ speech falls outside the scope of the First Amendment.”
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The lone dissenting opinion, written by Circuit Judge Lawrence VanDyke, harshly criticized the decision. While VanDyke argued that Theis’ books should be considered personal decorative items in his office, he questioned whether a school could allow employees to display pro-Palestinian banners while at the same time banning the display of the Israeli flag.
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“Could public school administrators create a policy that allows office decoration with partisan political messages deemed ‘compassionate’ enough, but prohibits any political speech that does not align with the Democratic Socialists of America platform because it is hostile in nature?” VanDyke wrote.
Fox News Digital has reached out to Theis’ attorney and IMESD for comment.
