Oregon education worker wins partial victory in ‘He is He,’ ‘She is She’ book display case

A federal judge Wednesday issued a split decision in the case of an Oregon education district employee who displayed books in his office that promoted a binary gender view.

U.S. Magistrate Judge Andrew D. Hallman ordered Oregon’s Intermountain Education Service District not to take any disciplinary action against clinical social worker Roderick E. Theis II for having the books out when no students were present.

The anti-transgender books cannot influence “impressionable or captive students” if the students aren’t in Theis’ office, U.S. Magistrate Judge Andrew D. Hallman ruled.

But Hallman declined to order the Pendleton-based district to remove a letter placed in Theis’ personnel file that found he violated the district’s anti-bias policy for displaying the books when students had been in his office.

Hallman found that Theis “spoke as a public employee by prominently displaying the books while students were present, and that expression is not protected by the First Amendment.”

But when no students were around, the display amounted to protected First Amendment speech of a private citizen, Hallman said.

Theis has worked for the district since 2008 as an education specialist to support their academic, social and emotional development. He travels to different schools in the district, which covers Morrow, Umatilla, Union, Wallowa, Grant, Baker and Malheur counties.

In October, he began displaying two books on the windowsill behind his desk in his La Grande Middle School office, “He is He” and “She is She” by Ryan and Bethany Bomberger. The covers showed a smiling boy and girl with the tagline, “a book about your identity.”

Theis bought the books and said he displayed the covers to make his office “more kid friendly” and send positive messages that “it’s great” to be a girl or a boy, according to the judge’s summary of the case.

Theis said he wished no one harm and did not believe the books contained messages of “ill will or hostility.” Four students were in the office at the time he had the books displayed, according to the opinion.

On Oct. 21, the La Grande Middle School principal emailed Theis that he had received a complaint from another employee about the books and told Theis to put them out of sight to maintain “neutrality at school.” The employee was concerned the books would be offensive to transgender students, according to the judge’s opinion.

The middle school’s principal later reviewed the books, said he didn’t find them offensive or inappropriate but noted each contained several Bible verses and was concerned they could be “pushing a certain point of view on a student,” according to the ruling.

On Oct. 22, the education service district alerted Theis that he would be investigated for his display of three books – “He is He,” “She is She” and “Johnny the Walrus” — as a potential bias violation and violation of the district’s “Every Student Belongs Policy.”

Theis said he displayed “Johnny the Walrus” by Matt Walsh in his Elgin and Union school district offices during the 2022-23 and 2023-2024 school years. The book says it’s about a boy named Johnny with a big imagination who likes to make-believe but is “forced” to make a decision between the boy he is and the things he “pretends to be.”

On one occasion, a student asked about “Johnny the Walrus” and Theis said he shared parts of the story with the student, the judge wrote.

During the district investigation, Assistant Superintendent Aimee VanNice noted a passage in the “She is She,” book that said it was important to have “separate girls’ & boys’ sports teams to give us all a chance to shine. It’s fun to compete when it’s fair,” according to the opinion.

When VanNice asked Theis whether the book, “She is She,” supports transgender people, Theis acknowledged it does not, the judge’s case summary said. Theis responded that he “might put the books aside” if he knew a transgender student would be coming into his office, according to the ruling.

VanNice told him the three books were not appropriate anywhere in the education district and encouraged him to display “neutral” books.

In November, VanNice sent Theis a letter, finding his books reflected a “bias incident” for their “hostile expression of animus toward another person relating to their actual or perceived gender identity.” The letter informed him he could face discipline up to firing.

Theis appealed to the superintendent, but the superintendent agreed that the books promoted a binary view of gender and created an “unwelcoming environment.” Theis then appealed to the school district’s board, which denied the appeal.

Theis filed a lawsuit in U.S. District Court in Pendleton and argued that the district engaged in “content and viewpoint discrimination.”

Hallman disagreed, finding that the district’s policy addresses “the legitimate concern of ensuring an open and welcoming school environment for all students and employees.”

The judge declined to order the district to remove the bias letter from Theis’s personnel file.

“The Letter of Directive determined that Plaintiff’s display of the books ‘for students visiting [his] office for purposes of evaluations and student services’ amounted to a bias incident,” the opinion said.

“Because the letter of directive was based in part on Plaintiff’s unprotected speech, removing the letter of directive from Plaintiff’s file is not narrowly tailored to remedy the specific harm in this case.”

The education service is “entitled to select the views that it wishes to express, including by way of deciding which books are appropriate for display,” Hallman wrote.

But he added: “Conversely, that control may not necessarily infringe upon Plaintiff’s liberties as a private citizen, specifically, his display when students are not present in his office.”

Hallman rejected VanNice’s concerns that the book display could affect staff and visitors.

“That alone is an insufficient basis for this Court to find an actual, material, and substantial disruption, or even a reasonable prediction of such a disruption,” he wrote.

— Maxine Bernstein covers federal court and criminal justice. Reach her at 503-221-8212, mbernstein@oregonian.com, follow her on X @maxoregonian, on Bluesky @maxbernstein.bsky.social or on LinkedIn.

If you purchase a product or register for an account through a link on our site, we may receive compensation. By using this site, you consent to our User Agreement and agree that your clicks, interactions, and personal information may be collected, recorded, and/or stored by us and social media and other third-party partners in accordance with our Privacy Policy.