In completely ignoring the Supreme Court’s landmark free speech ruling in Kennedy v. Bremerton, the federal appellate court insists that staff who express beliefs that don’t align with a school’s established orthodoxy can be fired.
[UPDATE] On Tuesday, a panel of judges for the U.S. Court of Appeals for the Ninth Circuit ruled that Oregon social worker Rod Theis has no free speech right to display books in his public school office that disagree with radical gender ideology — and that his firing was justified.
Theis, a devout Christian, used to work as an education specialist for InterMountain Education Service District, which required him to travel to different district schools to administer standardized tests to students. He was not a teacher and rarely had contact with most students but did have office space in two of the districts’ schools.
Many InterMountain district staff, including teachers, are allowed to decorate their classrooms and offices with various posters, flags, and books that promote Black Lives Matter, LGBTQ messages, pride flags, political candidates, views on political and social topics, and more. While still employed there, Theis followed their lead by displaying three children’s books — Johnny the Walrus, He is He, and She is She — in his offices. The three books teach the biblical view that sex is unchanging and that children should accept themselves as the sex they were born.
Though no student or parent ever complained about the books, one teacher in 2024 researched the books online, determined that they promote a “binary view of gender,” and filed a complaint, claiming that the three books are “transphobic” and therefore offensive. In response, InterMountain officials ordered Theis to remove the books. He filed a lawsuit and received an injunction from a district court that allowed him to display the books when students were not present. Soon thereafter, the same hostile teacher sent several students to Theis’s office, asking to see the books, to which he eventually agreed; the staff member caught Theis on video showing the books to the students, and the school district fired him.
He appealed the case to the Ninth Circuit, arguing that the decision violates his First Amendment right to free speech and that IMESD is engaging in viewpoint discrimination.
Instead, in a 2-1 decision, the Ninth Circuit panel found that the district has the right to regulate Theis’s speech, arguing that because the books are in his office and students saw them during the school day, the display of the books constitutes government speech. The court ruled that any speech by a staff member inside the four walls of the school constitutes government speech and is subject to censorship by a school district.
Perhaps most shocking was the court’s statement that “if an employee is on the clock, then the school district, not the employee, decides what he can or cannot say to students, even if private citizens may object to the messages that the government permits or prohibits.”
That was the only reference whatsoever to Theis’s claim of viewpoint discrimination as the court declined to even mention the messages and viewpoints promoted by other teachers and allowed by the school.
This dangerous precedent was recognized in a blistering dissent written by Judge Lawrence VanDyke, who asked,
“Could an American public school permit its employees to string up their own ‘GLOBALIZE THE INTIFADA’ banners in their offices, while simultaneously banning any employees from personally decorating with the Israeli flag? Could public school administrators establish a policy allowing office decoration with partisan political messages deemed sufficiently ‘compassionate’ but prohibit—as inherently ‘hostile’—any political speech that did not align with the Democratic Socialists of America platform? Could teachers be encouraged to wear large red pins reading ‘Make America Great Again’ during all student interactions—but only those pins?
If your instinctual answer to each of these questions is ‘No!’… you might be an everyday American. But according to the majority today, you vastly overestimate the First Amendment’s guarantee of free speech in our nation’s schools. In a decision that is irreconcilable with Supreme Court precedent, 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 employee’s own personal expression.
So you may be shocked to learn that when a teacher hangs a family portrait behind his desk, it is the government commemorating familial affection, not the teacher. According to the majority, this remarkable distortion of reality is that natural consequence of our court’s Free Speech jurisprudence.”
The ruling flies in the face of the Supreme Court’s landmark ruling in Kennedy v. Bremerton School District. In that 6-3 decision, the High Court reversed another Ninth Circuit panel and ruled that football coach Joe Kennedy had both a religious liberty and a free speech right to pray at midfield after games despite being in view of students and parents. The Court ruled that personal expression, including religious expression by teachers and other school employees, such as praying before meals or wearing a yarmulke, is not government speech, even if it is done during the school day in front of children.
Alliance Defending Freedom (ADF), which represented Theis, has not yet stated whether they will appeal his case to the full Ninth Circuit or the U.S. Supreme Court. However, given how out of step this Ninth Circuit decision is with not just Kennedy but several other recent Supreme Court rulings reaffirming religious liberty and free speech for Christians, there is little doubt that its attorneys will try to advance and rectify this unconstitutional and unjust finding.
Ryan Bomberger, who co-authored He is He and She is She with his wife, Bethany, called out both the Ninth Circuit and InterMountain officials after the decision was announced, posting on X, “Funny how the Left loves to ban books, promote censorship, and deny inclusion. Ninth Circuit delivers absurd ruling making biological facts unprotected speech.”
ORIGINAL ARTICLE
Christian Employee Sues Oregon School for Banning Biblical View on Gender
{Published on November 7, 2025} Alliance Defending Freedom (ADF) has appealed the case of licensed clinical social worker Rod Theis to the U.S. Court of Appeals for the Ninth Circuit, arguing that an Oregon school engaged in discrimination and violated his right to express his beliefs like other staffers.
Theis has worked with the InterMountain Service District in Oregon for 17 years. Theis is an education specialist, a position that requires him to travel to the 17 school districts that InterMountain serves. He administers standardized tests to students and evaluates their academic level and behavioral assessments to determine their needs.
The schools Theis works in provide him an office to perform the assessments, where his only interaction with students is administering the tests. His office is marked with a sign which reads “Staff Only”.
InterMountain permits teachers and staff to decorate their offices with pictures, posters, books, and other items that express their personal interests and beliefs. InterMountain does not require employees to receive permission before decorating their offices.
Other staff have decorated their offices with items expressing polarizing views on political and moral topics, including posters promoting LGBTQ views, pro-union sentiments, Black Lives Matter posters, and views on immigration policy.
Many staff also decorate their offices with toys, children’s books, and other items to make their offices feel welcoming to students.
Theis decided to decorate one of his offices with a children’s book entitled “Johnny the Walrus” and another office with two children’s books called, “He is He” and “She is She”.
The books express Theis’s belief that God creates people as male or female and celebrate living the way God made them.
For two years, Theis displayed “Johnny the Walrus” without any incident. The book tells the story of a boy who goes through a phase of wanting to look and act like a walrus but eventually grows out of it.
It wasn’t until Theis decorated his office with “He is He” and “She is She” that a teacher complained to leadership that his books were offensive. No parent or student ever complained about any of the books.
School leadership interrogated Theis about the books and about his religious beliefs. InterMountain then told Theis that he was no longer allowed to display the books and banned him from expressing a “binary view of gender,” threatening to fire him if he failed to self-censor.
Theis thereafter filed a lawsuit, claiming that the district was engaging in viewpoint discrimination and violating his First Amendment right to free expression.
A district court ruled that the case must be evaluated under the Supreme Court’s 2022 decision in Kennedy v. Bremerton School District. In that case, the Supreme Court ruled that Bremerton School District had violated football coach Joe Kennedy’s First Amendment rights by barring him from praying at midfield after football games.
Bremerton had argued that by praying in view of the public and students, Kennedy’s prayers could be seen as government speech and an endorsement of his religion by the school district.
The Supreme Court, however, found that government employees do not shed all right to free expression simply by being on school grounds. The Court ruled that the government can only limit a person’s freedom of expression if it is in the performance of an employee’s specific job duties.
The Supreme Court justices ruled that simply because a student may see a teacher or coach engaging in religious expression does not mean that action is an unconstitutional government endorsement of that speech.
In Theis’s case, the district court agreed that Theis’s display of the books was not government speech but still sided with InterMountain, ruling that Theis’s speech shifted to government speech if a student saw the books.
ADF has now appealed Theis’s case to the U.S. Court of Appeals for the Ninth Circuit, arguing that the district court’s ruling in InterMountain’s favor misses the entire point of the Supreme Court’s ruling in Kennedy.
In that case, the justices wrote that under this reasoning schools would feel required to
“…order [teachers] not to engage in any ‘demonstrative’ conduct of a religious nature’ within view of students, even to the point of being forbidden from folding their hands or bowing their heads in prayer before lunch.
Such a rule would be a sure sign that [the Court’s] Establishment Clause jurisprudence had gone off the rails…Not only could schools fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice,” but “[u]nder the [d]istrict’s rule, a school would be required to do so.”
ADF also argues that InterMountain has engaged in viewpoint discrimination against Theis’s religious beliefs, which should trigger strict scrutiny, the highest level of judicial review.
In addition to allowing other staff to express their viewpoints, including on the topic of gender, the school makes available books to students that discuss pro-LGBT views, suicide, drug and alcohol use, and sexually explicit and violent content. One book displayed features two boys kissing on the cover. Some of these books have resulted in parental complaints, yet they are still on display.
While InterMountain allows these books, it bans Theis’s, which he has only ever discussed with one student who asked him about the book outside of Theis’s job duties and has never resulted in a student or parent complaint.
ADF argues that InterMountain is not only censoring Theis’s personal expression, but it is doing so out of animus towards his personal views, which deviate from the district’s own preferred beliefs on gender.
“This case isn’t about books; it’s about public officials telling an employee that he isn’t allowed to express a view that differs from their own,” said ADF Senior Counsel Tyson Langhofer, who is also director of the ADF Center for Academic Freedom.
“Our legal system is built on the truth that the government can’t silence a speaker just because it disapproves of what he says. In the same way, InterMountain can’t censor Rod’s freedom of expression by forcing him to remove children’s book covers used as decoration in his office. We are urging the court to protect his First Amendment freedom to express his views just as other teachers at the school are allowed to do.”
Theis makes clear he has no animosity towards those who identify as transgender.
“I want every student I work with to experience kindness, dignity, and respect during their time with me,” he said. “This is an important aspect of what I do in the educational environment. Government officials are wrong to tell me I can’t express my sincere religious beliefs about male and female. Every American, including my coworkers, has the same freedom to express their own views on the subject.”
This case should have been a slam dunk for Theis. The district court got right up to the finish line, recognizing the precedent set in Kennedy, but then dropped the ball when it came to applying the Supreme Court’s reasoning in that and other recent religious liberty rulings.
A student simply seeing a school staffer’s personal expression does not make that expression impermissible government speech.
The civil rights violation becomes even clearer when factoring in InterMountain’s viewpoint discrimination. According to the suit, InterMountain’s only defense for allowing scores of left-leaning personal expressions while censoring Theis was that it was “unaware” of other staff expressing views on gender identity.
That is exceedingly hard to believe, but even if it were somehow true, it would not excuse the discrimination.
The reality is this: If these allegations are true, InterMountain is purposefully seeking to silence Theis’s views because it doesn’t like them, while allowing other staff to engage in all manner of ideological and political expression it does agree with.
That is blatantly unconstitutional.
The Ninth Circuit must take up this case, accurately apply the Supreme Court’s precedent in Kennedy, and reaffirm the right of school employees to express their beliefs — even if the school doesn’t agree with those beliefs.
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