The Montana Public Policy Center, together with the Montana First Amendment Society and 1776 Foundation, filed an amicus curiae brief he United States Court of Appeals for the Ninth Circuit in Theis v. Intermountain Education Service District, urging the court to reverse a district court decision that allowed an Oregon education agency to discipline — and ultimately fire — a public employee for displaying books in his own office.
The case asks a question that should concern anyone who values free expression in the workplace: can a government employer punish an employee for the viewpoint expressed by books sitting on a windowsill, when no one — not a single student — ever complained about seeing them?
The answer, we argue, is no.
What Happened to Rod Theis
Roderick Theis was a licensed clinical social worker employed by Intermountain Education Service District in Oregon as an Education Specialist. His job was to administer standardized tests to students one-on-one in his offices across several school locations. In October 2024, he placed two children’s books — He is He and She is She — on the windowsill behind his desk, consistent with how many of his colleagues decorated their office spaces. At two other offices, he also displayed Johnny the Walrus on his desk. All three books support a binary view of gender.
For months, not a single student asked about the books, commented on them, appeared upset by them, or picked them up. Zero incidents. Zero complaints from students or parents.
Then a colleague at a different school district filed a bias incident complaint against Theis. After an investigation, IMESD issued a formal Letter of Directive finding that Theis had committed “a hostile expression of animus toward another person relating to their actual or perceived gender identity” — and warned him that continued display of the books could result in termination.
There was one problem with that finding: it was factually unsupported and legally incoherent.
When investigators asked Theis directly whether he believed the books expressed hostility toward anyone, he said that he had no ill will toward anyone, wished harm to no one, and did not believe the books contained messages of hostility. The investigators used his very sensitivity against him — pointing to his statement that he might set the books aside if he knew a transgender student was visiting as evidence that he understood the books could have an “impact.” The district court accepted this logic. Our brief does not.
Theis eventually complied with the Letter of Directive and resumed displaying the books only when students were not present. But a separate employee kept watch. When four eighth-grade students unexpectedly walked into his office and read portions of the books on their own initiative, a new complaint was filed. IMESD placed Theis on administrative leave and terminated him. The district court refused to enforce its own preliminary injunction to halt the termination proceedings. This appeal followed.
Three Legal Errors — All in the Same Direction
Our brief identifies three distinct ways the district court got this wrong, each compounding the other.
First, the district court accepted IMESD’s finding that simply displaying books — with no hostile conduct, no hostile words, and an employer’s own acknowledgment that the principal found nothing offensive about them — constituted a “hostile expression of animus.” That reading renders the bias incident policy’s plain language meaningless. A policy requiring hostility cannot be satisfied by evidence of its absence. Theis’s sensitivity to others’ viewpoints demonstrates a lack of animus, not its presence. The district court should have said so.
Second, the district court misclassified Theis’s book display as unprotected government speech, relying on a pre-Kennedy v. Bremerton School District framework that the Supreme Court’s 2022 decision substantially revised. Under Kennedy, the relevant question is whether the speech owes its existence to the employee’s official duties — not simply whether students might observe it. Theis was paid to administer standardized tests. He was not paid to counsel students on gender identity, and he explicitly told investigators the books had nothing to do with his job. Just as the Supreme Court found that a football coach’s midfield prayers were not “government speech” simply because students were present, Theis’s books on a windowsill cannot be converted into official IMESD messaging just because a student could theoretically walk past them.
The district court’s approach would effectively require public school employees to “shed their constitutional rights at the schoolhouse gate” whenever they are physically present with students — precisely the outcome the Supreme Court condemned in Tinker v. Des Moines over fifty years ago and reaffirmed in Kennedy just three years ago. Under this logic, a teacher who keeps a Bible on his desk speaks for the government. A social worker who displays a photo of her family promotes official district family policy. No court should accept that premise.
Third, by permitting IMESD to silence Theis based on a single co-worker’s complaint — with no evidence of any actual disruption to school operations — the district court sanctioned a classic heckler’s veto. The Supreme Court has been unambiguous: the desire to avoid “the discomfort and unpleasantness that always accompany an unpopular viewpoint” is not sufficient justification to suppress speech. IMESD produced no evidence that Theis’s books disrupted schoolwork, impaired student learning, interfered with discipline, or harmed any student’s educational experience. One student asked about Johnny the Walrus, Theis summarized it, and that was the end of the matter — until IMESD decided that even that unremarkable exchange warranted investigation.
Why This Matters Beyond Oregon
IMESD’s conduct follows a pattern our organizations have documented repeatedly: a government employer adopts an institutional position on a contested social question, and when a dissenting employee quietly expresses a different view — not to students, not as part of instruction, but as a private citizen — the employer uses a facially neutral policy to punish the dissent. The Supreme Court confronted this exact dynamic in MacRae v. Mattos (2025), where Justice Thomas noted in a concurrence that it undermines core First Amendment values for a government employer to adopt an institutional viewpoint and then portray a dissenting employee’s existence as evidence of disruption.
What makes this case especially important is the breadth of the district court’s reasoning. If the mere possibility that a student might see an employee’s personal books converts those books into government speech subject to employer control, there is no meaningful limit on what a school district can suppress. An employee’s personal reading material, the contents of her bookshelves, the artwork on his desk — all of it becomes the government’s message the moment a student walks through the door.
That is not the law. Kennedy said so directly. Our brief asks the Ninth Circuit to apply Kennedy as written.
A Pluralistic Society Requires Tolerating Disagreement
There is a broader point worth making plainly. The First Amendment was not designed to protect only popular speech, comfortable speech, or speech that everyone in a government workplace agrees with. It was designed precisely to protect the employee whose views are in the minority — whose books are the ones a colleague doesn’t want to see on the windowsill.
As the Supreme Court recognized in Kennedy, tolerance of speech is not the same as endorsement. Students are capable of understanding that distinction. A social worker who keeps books on his desk is not the school district speaking. And a school district that fires him for those books is not protecting students — it is punishing a viewpoint.
Rod Theis lost his job for displaying books that expressed a view shared by millions of Americans. He expressed no hostility, caused no disruption, and harmed no one. The First Amendment protects him, and the Ninth Circuit should say so.
READ THE BRIEF HERE
