Split appeals court upholds firing of educator for displaying Matt Walsh book in office

When high school football coach Joe Kennedy triumphed over the Washington school district that fired him for praying on the field after games, the Supreme Court appeared to signal broad protection for public educators' speech in their personal capacities at school.

Not so fast, according to a split panel of the 9th U.S. Circuit Court of Appeals, ruling against an "education specialist" fired by his rural Oregon school district for "hostile expression of animus" related to gender identity: displaying books that recognize sex as binary and immutable in his office where students could see them.

Judges nominated by presidents Obama and Biden invoked a "robust body of precedent holding that educators speak as government employees when they convey messages to students within the four walls of a school," upholding a lower court that refused to grant the preliminary injunction sought by Roderick Theis against InterMountain Education Service District. 

SCOTUS did not take "a sharp U-turn" from its own rulings, or those of nine federal appeals courts going back five decades, when it held that Kennedy's post-game, on-field prayers were "outside official duties," Judge John Owens wrote, joined by Judge Jennifer Sung.

The dissenting President Trump nominee on the panel warned that his colleagues had tacitly erased First Amendment rights in public schools for employees at odds with prevailing sentiments while authorizing the government's preferred messages.

Judge Lawrence VanDyke asked rhetorically whether schools could permit employees to post "their own 'GLOBALIZE THE INTIFADA' banners in their offices, while simultaneously banning any employees from personally decorating with the Israeli flag," or encourage teachers to wear MAGA pins "during all student interactions – but only those pins?"

Owens mocked VanDyke's dissent, several pages longer than the majority opinion, as "cheap cotton candy: a lot of fluff but ultimately no real substance." The sneer echoes a Washington Post article on federal appellate judges whom "many lawyers" believe are "auditioning" for a SCOTUS nomination from Trump, including VanDyke.

Students demand to see his books, teacher records it

Theis achieved a partial win nearly a year ago before U.S. Magistrate Judge Andrew Hallman, a part-timer appointed directly by the district court's confirmed judges to a fixed term, who ruled Theis could display Johnny the Walrus by Matt Walsh, and He Is He and She Is She by Ryan and Bethany Bomberger, when students weren't in his two offices.

Hallman emphasized the licensed clinical social worker's job duties for the district: "he administers standardized tests to students in a one-on-one format in his offices at various locations within the IMESD service area." Theis displayed the books "while engaged in speech that IMESD paid him to produce" – administering tests.

InterMountain launched a second investigation against Theis two days after the partial injunction, however, when four students cornered him in his office before school and demanded to see the books, VanDyke said. 

Taking the partial injunction at face value – that it protected the books' display when Theis wasn't officially working with students – he "eventually allowed them to view the books," VanDyke wrote. "Perhaps coincidently [sic]," a teacher walked by the open office, "recorded a video of the students reading the books" and filed a complaint, getting Theis fired.

The majority opinion excludes the context of the incident, saying only that students "entered his office and accessed the books" and Theis discussed them with students in "at least one instance."

Just the News separately asked IMESD and its lawyers, who rebuked Just the News a year ago for contacting its client directly, about a potential bad-faith investigation of Theis in response to a setup between students and a teacher to get him fired, as the dissent implies. Lawyer Kurt Peterson responded but did not answer questions.

Theis's lawyers at the Alliance Defending Freedom didn't answer a query on its next steps. The free speech powerhouse, which has 20 wins at SCOTUS in the past 15 years, didn't announce the loss, which The Oregonian covered.

ADF's lawsuit emphasized that IMESD looks the other way when employees display progressive political messages in their offices, such as "LGBTQ+ Justice Now!" and "Classrooms not cages" posters offered by the teachers union.

District can ban personal crucifix because teacher's job includes decorating walls

Theis's case is further ahead than an older dispute over school decoration and official duties: a Catholic teacher's waist-high crucifix on the wall next to her classroom desk.

First Liberty Institute is appealing U.S. District Judge Sarah Russell's denial of a preliminary injunction against Connecticut's Consolidated School District of New Britain, which suspended Marisol Arroyo-Castro without pay and reassigned her outside the classroom for refusing to remove the crucifix from view. She said her principal called it an "idol."

Her crucifix is "personal expression" no different than the "family photos, inspirational quote mugs, pop culture figurines, and sports memorabilia" displayed by other teachers, the opening brief to the 2nd Circuit says. "There is no evidence" anyone took the crucifix to mean the district was speaking or endorses the Roman Catholic Church.

Despite the district conceding that teachers are "generally" allowed to "display some personal items in their classrooms or work areas," the Biden nominee botched Kennedy by emphasizing Arroyo-Castro's "job duties specifically included decorating the classroom walls," the appeal says.

Russell waved off the school district's admission that the wall decoration policy was not neutral or generally applicable, saying its interest in "efficient operation of the school" outweighed her First Amendment rights, the wrong legal standard, the brief says.

The 2nd Circuit hasn't scheduled oral argument yet, the docket shows.

When teacher hangs family portrait, it's government speech?

"For decades, circuit courts have uniformly rejected First Amendment arguments like Theis’s," the 9th Circuit majority wrote, invoking then-3rd Circuit Judge Samuel Alito's 1998 opinion but not once mentioning the foundational school-speech precedent Tinker, which protects First Amendment rights for both students and employees within schools.

The education specialist's speech was "confined to the environments – his offices – in which he was assigned to perform his duties and to times when he was with students," and he displayed the offending books "were visible to those students during evaluations and meetings," Owens wrote, without noting students had cornered Theis before school to see the books.

Precedents confirm "a settled principle: when a public education employee communicates messages to students in a pedagogical or evaluative setting, he is performing the work he was hired to do," Owens said, without explaining what was "pedagogical or evaluative" about the setting in which the incident occurred.

Under the public employee speech precedent Garcetti, "if an employee is on the clock, then the school district, not the employee, decides what he can or cannot say to students," the opinion says, again skirting the factual issue of students barging into Theis's office before school.

VanDyke's dissent, which cites Tinker thrice, marvels at the "expansive new rule" issued by the Democratic nominees: "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."

An "everyday American" or a "reasonable observer" may be "shocked to learn that, when a teacher hangs a family portrait behind his desk, it is the government commemorating filial affection, not the teacher," he wrote sarcastically. "[E]xactly no one believes the majority's legal fiction" that personal speech becomes governmental if students see it.

Under this reading, the Constitution permits school administrators to allow viewpoints in line with theirs but not "any competing personal messages—thus giving the grossly misleading impression of monolithic uniformity of private opinions on what are really some of the most hotly contested issues in our society today," VanDyke wrote.