Staff Reports
The Ninth Circuit issued a split ruling this week that takes a big bite out of teacher speech rights inside schools. In a published 2–1 opinion filed July 21, 2026, the court upheld a lower court’s decision denying a preliminary injunction for Roderick Theis, an education specialist who was disciplined after displaying three children’s books in his school offices. The ruling makes clear the panel views many on‑campus staff expressions as part of the job — not private speech — and that has real consequences for teachers and students alike.
Ninth Circuit ruling: what the court actually held
The panel, led by Judge John B. Owens and joined by Judge Jennifer Sung, ruled that Theis spoke as a public employee when he displayed Johnny the Walrus and He Is He / She Is She in offices where students could see them. Under the court’s reading of Garcetti and long Ninth Circuit precedent, speech made in the course of official duties gets no First Amendment protection. Because the majority found the book displays were tied to Theis’s work with students, the court never did the usual Pickering balance of employee speech rights against the school’s interests. The decision upholds the InterMountain Education Service District’s move to discipline Theis under a bias‑incident policy that bars “hostile expression of animus” toward gender identity.
Majority reasoning: student‑facing speech is treated as government speech
The majority drew a sharp line between off‑duty expression and anything that happens “within the four walls of a school” while a staffer is doing job tasks. The judges said Kennedy v. Bremerton — the coach‑prayer case the Supreme Court decided — does not give a pass to classroom or office speech that is part of a staffer’s duties. In short: if you are interacting with students or your role includes administering tests or counseling, the court says that speech is on the clock and may be regulated. The majority even sniped that the dissent was “cheap cotton candy: a lot of fluff but ultimately no real substance.” Charming, if you like condescension with your precedent.
Dissent warns this logic swallows private expression
Judge Lawrence VanDyke’s dissent saw the ruling differently. He argued the book displays looked like ordinary personal items teachers post in their workspaces and said Kennedy should protect such private expression. VanDyke warned the majority’s approach lets districts pick and choose which personal views get a pass — a real problem when school policy starts policing ideas instead of conduct. He used blunt hypotheticals about selective displays to show how the rule could become a one‑sided speech code. That warning matters, because the decision arms districts with a clear legal theory to discipline staff for visible views they or others find objectionable.
Why this matters: practical fallout for schools and free speech
This ruling is not just a paper exercise for lawyers. It tells school districts across the Ninth Circuit that they have cover to enforce bias‑incident and decorum rules against employees’ visible materials when students might see them. Advocacy groups that backed Theis argue this narrows teacher speech and chills private expression. School administrators will point to the decision as a tool to keep classrooms “safe.” Parents and staff should be alarmed that a few books in an office can now be treated as conduct tied to job duties, rather than private views. If courts keep moving this way, the line between “government speech” and “private belief” inside schools will get blurrier — and that favors those who run the buildings, not those who populate them.
Theis’s lawyers with Alliance Defending Freedom may seek further review, and this fight is likely headed for higher courts or new litigation testing the Kennedy/Garcetti split in K–12 settings. For now, the Ninth Circuit has drawn its marker: when teachers’ words or displays touch students on the clock, they’re speaking for the state. That should give pause to educators who thought “personal items” meant what the phrase says — personal. It’s a ruling that will keep conservative free‑speech advocates busy and school administrators very comfortable, at least for the moment.
