Fired school counselor loses again after free speech fight over gender-themed books in his office

A federal appeals court ruled this week that a fired Oregon school counselor’s display of books promoting binary gender views to students was not protected by the First Amendment.

The 2-1 decision handed down by the 9th U.S. Circuit Court of Appeals Tuesday upheld Roderick E. Theis II’s termination from Oregon’s InterMountain Education Service District (IMESD), according to court documents obtained by Fox News Digital.

The court also rejected Theis’ appeal.

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According to the ruling, Theis, an education specialist who worked for the IMESD for more than 15 years, displayed books titled "He is He" and "She is She" in two separate offices on different campuses when meeting with middle school students.

He also displayed a children’s book penned by conservative commentator Matt Walsh titled "Johnny the Walrus" that "allegorically comments on transgender issues," court documents said.

After an investigation into the incident, Theis told school administrators he did not mean any harm by displaying the books and even considered putting them away when transgender-identifying students visited his office.

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However, IMESD concluded the display of the books was a "bias incident" and instructed the counselor to remove them from his school offices or risk termination.

A federal judge later partially granted Theis’ request for a protective order that allowed him to continue displaying the books in his offices when students were not visiting, but his employment was ultimately terminated after a district investigation revealed Theis provided the books to middle school students who had requested to see them, according to the ruling.

Theis’ attorneys argued the counselor was protected from the injunction when meeting with students outside their official sessions, but a lower court later ruled that the partial injunction prohibited Theis from displaying the books when students were present in his office.

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The lower court, however, issued another ruling against Theis’ termination appeal.

The ruling was upheld by the 9th U.S. Circuit Court of Appeals Tuesday, with the majority opinion outlining longstanding precedents that an educators’ speech is considered government speech when interacting with students.

"As a government employee, Theis was assigned to work in school offices, meet with students, and carry out his duties in that setting," Circuit Judge John B. Owens wrote in the majority ruling. "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."

In a statement to Fox News Digital, Mathew Hoffman, legal counsel at Alliance Defending Freedom, vowed that Theis' attorneys are "evaluating next steps" after the ruling.

"The government can’t silence a speaker just because it disapproves of what he says, yet InterMountain fired Rod Theis after a single person objected to his views," Hoffman added. "We will continue to defend Rod’s First Amendment freedom to express his views like other employees."

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The sole dissenting opinion, written by Circuit Judge Lawrence VanDyke, sharply criticized the ruling. VanDyke argued that Theis’ books should be considered personal decorative items in his office, while questioning if a school could permit employees to hang pro-Palestinian banners while simultaneously banning the display of 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?" VanDyke wrote.

Fox News Digital reached out to IMESD for comment.