A three-judge panel at the 9the Circuit Court of Appeals ruled last week that an Oregon school district didn’t violate an educational specialist Roderick Theis’s right to free speech when it disciplined him for not removing three children’s books that were visible in his two offices, “He is He,” “She is She” and “Johnny the Walrus,” that the district said were biased against transgender students. “Johnny the Walrus” was written by conservative commentator Matt Walsh, who rejects the idea that people can be transgender. In Oregon, gender identity is a protected class, and the district’s anti-bias policy was drafted to comply with that law.

In his dissent, Judge Lawrence Vandyke argued that the ruling opens the door for viewpoint discrimination by administrators toward other staff whose opinions they simply do not like behind the guise of “regulating employee speech.”

The majority and dissenting opinions in the case, Theis v. InterMountain Education Service District, put the complexities of teacher speech in stark relief and raises critical questions which cannot be ignored. As a curriculum theorist, I understand that few issues generate as much friction as debates about free speech in elementary and secondary education. Fights over what is and isn’t appropriate and what rights educators do or don’t possess have been a constant because, at their core, these clashes are often over which social values and knowledge get elevated to curriculum or required learning.  The Theis case is no different. It illustrates the interaction of three realities at the intersection of public K-12 education and free speech.

The first reality is that, according to the 2008 Supreme Court case Garcetti v. Ceballos, what teachers say or do while they are engaging in their jobs is government speech. They’re not protected by the First Amendment because, as the majority opinion in the Theis case reiterates, they are being paid to teach a curriculum set and approved by the state. In this sense, whatever a teacher says in their duties as a teacher assumes government sanction. The same is also true of classroom displays, banners, flags and even library books. This rule doesn’t apply when a teacher is acting in a private capacity as a citizen or when they are not engaged in their official duties. For example, in Kennedy v. Bremerton School District, which involved a football coach who prayed while students were present, the Supreme Court ruled that he wasn’t barred from doing so because he wasn’t engaged in an official duty then. Still, as Vandyke asserted, there is a concern that this power can be abused.

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The second reality regarding free speech of teachers was succinctly articulated by the two judges in the 9th Circuit panel last week when they cited a 2007 7the Circuit Court of Appeals ruling in Mayer v. Monroe County Community School Corporation: “The First Amendment does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system.”

Nicholas Mitchell

Nicholas Mitchell is an assistant professor of curriculum studies at the University of Kansas. He is a curriculum theorist whose scholarship focuses on the intersection of education theory, policy and practice. He is the author of “On Bigotry” by Bloomsbury Publishing.