Theis v. Intermountain Education Service District Board of Directors

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PENDLETON DIVISION

RODERICK E. THEIS, II, an individual, No. 2:25-cv-00865-HL

Plaintiff, OPINION AND

ORDER

v.

INTERMOUNTAIN EDUCATION SERVICE

BOARD OF DIRECTORS, MARK S. MULVIHILL, and

AIMEE VANNICE

Defendants.

Rebekah Schultheiss (Millard)

P.O. Box 7582

Springfield, OR 97475

David A. Cortman

Alliance Defending Freedom

1000 Hurricane Shoals Road, NE, Suite D-11000

Lawrenceville, GA 30043

Matthey Ray

Tyson Charles Langhofer

Alliance Defending Freedom

44180 Riverside Pkwy

Landsdowne, VA 20176

Attorneys for Plaintiff

Julian W. Marrs

Harrang Long P.C.

800 Willamette St., Suite 770

Eugene, OR 97201

Kurt Peterson

Harrang Long P.C.

111 SW Columbias St., Suite 950

Portland, OR 97201

Attorneys for Defendants

___________________________________________

HALLMAN, United States Magistrate Judge:

Plaintiff Roderick Theis brings this action against Defendants Intermountain Education

Service District (“IMESD”) Board of Directors; Mark Mulvihill, Superintendent; and Aimee

VanNice, Assistant Superintendent and Director of Human Resources. Plaintiff, an employee of

IMESD, alleges that Defendants violated his constitutional rights when they prohibited him

from, and disciplined him for, displaying certain books that promoted a binary gender view in his

office, including when children were present. Compl., ECF 1. Now before the Court is Plaintiff’s

Motion for Preliminary Injunction, which seeks to (1) stop Defendants from enforcing its Speech

Policy in a way that prevents him from displaying the books and (2) require Defendants to

remove the Letter of Directive related to Plaintiff displaying the books. Mot. 2, ECF 12. The

Court held oral argument on the Motion on July 18, 2025. ECF 31. For the reasons that follow,

the Motion is GRANTED in part and DENIED in part: Defendants are enjoined from prohibiting

Plaintiff from prominently displaying the books when no students are present.

BACKGROUND

I. The parties.

IMESD is an education service district that provides services to school districts and

schools in Morrow, Umatilla, Union, Wallowa, Grant, Baker, and Malhuer Counties. Compl. ¶

33; Resp. 9, ECF 27. It provides services in four areas, including special education, technology,

school improvement, and administrative services. Resp. 9. IMESD does not control the school

districts or schools it serves, and it has no control over those schools’ classrooms, curriculums, or

library content. Id. IMESD has a Board of Directors (“the Board”) that establishes “policies for

IMESD consistent with the requirements of law and the statewide goals and standards

established by the State Board of Education.” Compl. ¶ 8. The Board also appoints a

superintendent to manage IMESD and its employees in a manner consistent with state law and

the Board’s policies. Id. at ¶¶ 11–12. Defendant Mulvihill is IMESD’s Superintendent. Id. at ¶

13. Defendant VanNice is IMESD’s Assistant Superintendent and Director of Human Resources

and is also responsible for the enforcement of IMESD’s policies. Id. at ¶¶ 22–23.

Plaintiff is a licensed clinical social worker employed by IMESD as an Education

Specialist, and he has worked at IMESD since 2008. Id. at ¶ 47. In Plaintiff’s role, he “travels to

schools within IMESD’s jurisdiction to meet with students and assess their educational support

needs.” Id. at ¶ 48. That includes meeting one-on-one with students to conduct standardized tests

that evaluate their academic level or their social or emotional needs. Id. at ¶ 49. He writes reports

based on those interactions and tests, and he recommends how the school can best meet the

student’s needs. Id. at ¶ 50.

II. The policies underlying this action.

IMESD adopted the Every Student Belongs Policy (“ESB Policy”) and the Bias Incident

Complaint Procedure Policy (“Bias Incident Policy”) in December 2020, and it revised them in

December 2021. Id. at ¶¶ 36–37; Resp. 9–10. Together, those policies “constitute Defendants’

Speech Policy.” Compl. ¶ 38. IMESD adopted the ESB Policy and the Bias Incident Policy to

comply with Oregon law. Resp. 10. Defendants point to two statutes as the basis for its policies:

first, Or. Rev. Stat. (“ORS”) § 659.850(2), which mandates that “[a] person may not be subjected

to discrimination” in a public school funded by the Legislature; and second, ORS § 339.347,

which defines “bias incidents” and requires that education providers adopt policies to address

bias incidents. See id. at 10 (citing and describing statutes).

The ESB Policy mirrors the statutory definition under ORS § 339.347(1)(a)(A), which

provides that a “‘[b]ias incident” means a person’s hostile expression of animus toward another

person, relating to the other person’s perceived race, color, religion, gender identity, sexual

orientation, disability or national origin, of which criminal investigation or prosecution is

impossible or inappropriate.” Compl. ¶ 40; Ex. E 1, ECF 1-5. The ESB Policy states that, when

responding to bias incidents, IMESD “will use non-disciplinary remedial action whenever

appropriate.” Ex. E 1.

The Bias Incident Policy has a four-step process. Ex. F 1–2, ECF 1-6. First, after learning

of a potential bias incident, a staff member reports it to the building or program administrator. Id.

at 1. Second, the administrator or designee writes up the complaint, investigates it, provides

notice to the parties involved, determines responsibility, and considers responses, including

educational or redirection options. Id. Those options align with ORS § 339.347(3)(e)(D)(i)-(iii),

which requires that educational and redirection procedures:

• Address the history and impact of bias and hate;

• Advance the safety and healing of those impacted by bias and hate;

• Promote accountability and transformation for people who cause harm; and

• Promote transformation of the conditions that perpetuated the harm.

Compl. ¶ 41; Ex. F 1. At the third stage, the complainant and respondent are given opportunities

to appeal, and the superintendent or their designee reviews the administrator’s decisions and

actions. Ex. F at 1–2. Finally, after the superintendent’s review, a dissatisfied party may further

appeal to IMESD’s Board. Id. at 2.

III. Plaintiff’s offices and the books he displayed.

Plaintiff has an office in La Grande Middle School (LGMS) that he spends two to three

days in per week, and he has an office in the Elgin School District. Compl. ¶¶ 66–67. Plaintiff

also had an office in the Union School District during the 2022–23 and 2023–24 school years. Id.

at ¶ 68. That arrangement is typical for IMESD employees in their assigned schools, and

employees “commonly decorate their offices with paintings, personal photos . . . posters,

inspirational quotes, books, and other items.” Id. at ¶¶ 51–52. Plaintiff uses those offices “for

writing reports, responding to emails, consulting with teachers regarding student needs, and

testing and evaluating students.” Id. at ¶ 69. His LGMS office has a sign on the door that reads

“Staff Only,” and students only enter his office while “under his direct supervision during

evaluations or testing.” Id. at ¶ 71.

“On October 2, 2024, Plaintiff began displaying two books on the windowsill behind his

desk in his LGMS office: He is He and She is She by Ryan and Bethany Bomberger.” Id. at ¶ 73.

The covers were visible, displaying illustrations of a smiling boy and girl, respectively, along

with the tagline “a book about your identity.” Id. at ¶¶ 74–76. Those books were the only

decorations that Plaintiff had in his LGMS office. See id. at ¶ 74. Plaintiff purchased the books

himself and stated that he “displayed the covers of the [b]ooks as his expression.” Id. at ¶¶ 77,

79. Plaintiff evaluated four students in that office while displaying the books. Id. at ¶ 72. No

student or staff members asked about those books or commented on them, no student was

“visibly upset or distracted by” them, and no one handled or read either of them. Id. at ¶¶ 80–82.

Plaintiff also displayed a book—Johnny the Walrus by Matt Walsh—on the desk in his

Elgin and Union School District offices. Id. at ¶ 83. A description for that book explains that:

Johnny is a little boy with a big imagination. One day he pretends to be a big

scary dinosaur, the next day he’s a knight in shining armor or a playful puppy. But

when the internet people find out Johnny likes to make-believe, he’s forced to

make a decision between the little boy he is and the things he pretends to be – and

he’s not allowed to change his mind.

Id. at ¶ 86. Plaintiff purchased that book using his personal funds and “displayed [it] as his

expression in his Union office during the” 2022–23 and 2023–24 school years “and in his Elgin

office during the” 2024–25 school year. Id. at ¶ 88. Only the front and back covers were visible

to visitors in Plaintiff’s Elgin office. Id. at ¶ 89. On one occasion—while Plaintiff was

conducting an evaluation—a student asked about Johnny the Walrus. Id. at ¶ 129. Plaintiff

summarized the book and shared parts of it with the student. Id.

IV. Complaint and subsequent investigation.

“On October 21, 2024, LGMS Principal Chris Wagner emailed Plaintiff” because he had

received a complaint about the books—He is He and She is She—on display in Plaintiff’s LGMS

office. Id. at ¶¶ 91, 94. Principal Wagner instructed Plaintiff to place the books out of sight. Id. at

¶ 92. When they met on October 23, Principal Wagner explained that he had received a

complaint from a La Grande School District (“LGSD”) employee who was concerned that the

messages conveyed by Plaintiff’s books “could be considered offensive to transgender students.”

Id. at ¶¶ 93–95. That employee had seen the books in Plaintiff’s office, researched them online,

“and then determined they were offensive.” Id. at ¶ 96.

Plaintiff and Principal Wagner reviewed the books together. Id. at ¶ 97. Although

Principal Wagner said he did not find anything offensive or inappropriate about them, he “noted

that each book contained several Bible verses,” and was concerned that they “could be

considered pushing a certain point of view on a student.” Id. at ¶¶ 97–98. “[H]e again requested

that Plaintiff remove the [b]ooks from his office to maintain the neutrality at school.” Id. at ¶

101.

On October 22, Defendant VanNice notified Plaintiff that a LGSD employee had filed a

bias incident complaint against him with IMESD due to his display of He is He and She is She.

Id. at ¶ 104. She informed him that IMESD would investigate the display of the books as “‘a

potential bias incident relating to another person’s gender identity.’” Id. at ¶ 105.

On October 29, Plaintiff met with VanNice and others from IMESD. Id. at ¶ 107.

VanNice again explained the reason for the meeting and then questioned Plaintiff about his

reason for displaying them. Id. at ¶¶ 109–10. Plaintiff first explained that the books were

“decoration to make his office more kid friendly” and that he wanted to send positive messages

that “girls can do anything and that it’s great to be a girl” and, similarly, that “boys can do great

things” and “it’s great to be a boy.” Id. at ¶ 113. VanNice asked Plaintiff numerous questions

about the books’ content. Id. at ¶ 116. For example, she asked Plaintiff about “a page in She is

She that contained several Bible verses.” Id. at ¶¶ 118–20. And she asked Plaintiff about a page

“contain[ing] several scientific facts about how boys and girls are different in important ways.”

Id. at ¶¶ 123–24. For example, the book explained that:

• As soon as we exist, something special inside each of us (called DNA)

determines whether we will be girls or boys. That DNA never changes, no matter

how we feel.

• Doctors know long before we’re born whether we are females or males. They use

a special machine to see inside a mother’s womb. The image is called an

ultrasound.

• There are thousands of physical differences between girls and boys. From our

brains to our faces to our lungs and other body parts, we are wonderfully created

equal but not the same.

• From running to swimming to soccer and volleyball, it’s 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.

Id. at ¶ 124 (emphasis in original).

When VanNice asked Plaintiff how the book could be used to support a transgender

student, Plaintiff told her that he did not use the books as part of his work with students. Id. at ¶¶

126–27. He explained that they were displayed behind his desk so “that he could supervise

access to them.” Id. at ¶ 128. Plaintiff cited the student who asked him about Johnny the Walrus

as an example. Id. at ¶ 129. When asked again whether She is She “support[s] transgender” or

“support[s] a she wanting to be a he,” Plaintiff responded that it does not. See id. at ¶¶ 140–43

(quoting Ex. K 4, ECF 1-11; Ex. L 3, ECF 1-12). VanNice asked Plaintiff whether he believed

displaying the books constituted a hostile expression of animus, and Plaintiff stated that “he has

no ill will towards anyone, that he wished no harm to anybody,” and that he did not believe that

the books contained “messages of ill will or hostility.” Id. at ¶¶ 144–45. Plaintiff acknowledged

that a student who had thoughts about being transgender might see the books. Id. at ¶¶ 146–47.

And he indicated that he “might put the books aside” if he knew that a transgender student would

be entering his office. Ex. K 6.

Throughout the meeting, Plaintiff pointed out books in other classrooms and the library

that contained violence and sexual scenes or references. See, e.g., Compl. ¶¶ 148–51. VanNice

did not consider those other books as relevant to the complaint, and she informed Plaintiff that

the books he displayed were not appropriate in any of his office spaces in any school district. Id.

at ¶¶ 152–53. She encouraged Plaintiff to display neutral books. See id. at ¶ 154; Ex. K 7.

Plaintiff asked whether he could have more books displayed covering a variety of topics. Ex. M

6, ECF 1-13. But VanNice told him that those books—He is He and She is She—were not

appropriate for his office spaces. Id. When Plaintiff asked whether the books were considered

religious, VanNice replied that she would let him decide that, but—in any event—they did not

“support transgender or gender neutral.” Ex. K 7.

V. IMESD’s determination and Plaintiff’s subsequent appeals.

On November 22, VanNice issued a Letter of Directive detailing IMESD’s findings and

final determination regarding Plaintiff’s display of the books. Compl. ¶¶ 156–57; see also Ex. G,

ECF 1-7. The letter concluded that Plaintiff’s “display of He is He, She is She, and Johnny the

Walrus for students visiting [his] office for purposes of evaluations and student services[]

amounts to a bias incident” under the ESB Policy because it constituted “a hostile expression of

animus toward another person relating to their actual or perceived gender identity.” Compl. ¶

160; Ex. G 2. It explained that his “admission that if [he] knew a transgender student were

visiting [his] office [he] might set the books aside connotes that [he] underst[ood] the impact the

books displayed may have on certain students based upon their actual or perceived gender

identity.” Ex. G 2. The letter informed Plaintiff that continuing to display the books could result

in discipline up to and including termination of his employment. Id.

Pursuant to the Bias Incident Response Policy, Plaintiff appealed the initial determination

to Superintendent Mulvihill. Compl. ¶¶ 163–64; Ex. M. IMESD’s legal counsel and a private

consultant assisted with the appeal. Ex. H 1, ECF 1-8. First, the appeal substantiated the finding

that Plaintiff’s conduct in displaying He is He and She is She constituted a bias incident under

the ESB policy. Id. “The investigation found that the books promote a binary view of gender,

which excludes and invalidates an understanding of gender diversity and transgender students,

staff, and others.” Id. It concluded that displaying the books “contributes to an unwelcoming

environment,” which is contrary to IMESD’s goals. Id. Second, the appeal substantiated the

finding that Plaintiff’s conduct “conflicted with the District’s policy and responsibilities under

Oregon law to ensure an inclusive educational environment.” Id. It noted that ORS § 339.347

requires educational services providers like IMESD to adopt policies affirming that “students are

entitled to a high-quality educational experience free from discrimination or harassment based on

perceived . . . gender identity,” and that “employees of education providers are entitled to work

in an environment that is free from discrimination or harassment based on . . . gender identity.”

Id. at 1–2. And it “found that by prominently displaying She is She and He is He, [Plaintiff]

introduced materials into the public school environment that, even if done so unintentionally,

communicates a message that is excluding on the basis of gender identity and undermines the

inclusive environment” that LGSD and IMESD are obligated to maintain. Id. at 2–4. The appeal

rejected Plaintiff’s contention that the investigation was biased or warranted a different outcome.

Id.

Plaintiff further appealed to IMESD’s Board. Compl. ¶ 196; Ex. O, ECF 1-15. And the

Board denied Plaintiff’s appeal. Compl. ¶¶ 198–99; Ex. P, ECF 1-16.

VI. Procedural history.

Plaintiff filed his Complaint on May 21, 2025. ECF 1. It includes six causes of action

brought under 42 U.S.C. § 1983, including violations of (1) Plaintiff’s First Amendment right to

freedom of speech due to content and viewpoint discrimination, (2) Plaintiff’s First Amendment

right to freedom of speech due to retaliation, (3) Plaintiff’s First Amendment right to free

exercise of religion, (4) Plaintiff’s right to be free from unconstitutional conditions, (5) Plaintiff’s

Fourteenth Amendment right to due process of law, and (6) Plaintiff’s Fourteenth Amendment

right to equal protection of the law. Compl. ¶¶ 33–44.

On May 29, Plaintiff filed the Motion for Preliminary Injunction now before the Court.

ECF 12. Plaintiff seeks an order that Defendants (1) “stop enforcing the Speech policy

challenged herein . . . so as to prohibit Plaintiff from displaying the [b]ooks or similar messages

in the workplace” and (2) “remove any reference to the Letter of Directive and related

investigations in the District’s records for Plaintiff.”1 Mot. 2.

STANDARDS

A preliminary injunction is an “extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 22 (2008). A plaintiff seeking such an injunction generally must show that: (1) the

plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm in

the absence of preliminary relief; (3) the balance of equities tips in favor of the plaintiff; and (4)

that an injunction is in the public interest. Id. at 20.

In the Ninth Circuit, courts “apply a ‘sliding scale test’ that ‘permits plaintiffs to satisfy

this [first] requirement with a “serious question” on the merits when the balance of hardships tips

sharply in their favor.’” Assurance Wireless USA, L.P. v. Reynolds, 100 F.4th 1024, 1031 (9th Cir.

2024) (quoting Where Do We Go Berkeley v. California Dep’t of Transp., 32 F.4th 852, 863 (9th

Cir. 2022)). “Serious questions are issues that ‘cannot be resolved one way or the other at the

hearing on the injunction because they require more deliberative investigation.’” Id. (quoting

Manrique v. Kolc, 65 F.4th 1037, 1041 (9th Cir. 2023)). A plaintiff does not show a serious

question by merely raising a plausible claim, “nor can a district court forgo legal analysis just

because it has not identified precedent that places the question beyond debate.” Id. (internal

1 At oral argument, counsel for Plaintiff clarified that the relief requested under the first prong—

although broadly stated—is limited to allowing Plaintiff to display the books in his office. Tr.

31:12–19, ECF 35.

quotation omitted). “This ‘less demanding’ merits standard requires serious factual questions that

need to be resolved in the case.” Id.

“The final two injunction factors—the balance of equities and the public interest—merge

where a government agency” is a defendant against whom preliminary injunctive relief is sought.

Id.

There are two forms of preliminary injunctions. Marlyn Nutraceuticals, Inc. v. Mucos

Pharma GmbH & Co., 571 F.3d 873, 878–79 (9th Cir. 2009). A “prohibitory injunction prohibits

a party from taking action and preserves the status quo pending a determination of the action on

the merits.” Id. (citation modified); see also Heckler v. Lopez, 463 U.S. 1328, 1333 (1993)

(explaining that a prohibitory injunction “freezes the positions of the parties until the court can

hear the case on the merits”). “The status quo ante litem . . . means the last, uncontested status

which preceded the pending controversy.” Marlyn Nutraceuticals, Inc., 571 F.3d at 879 (internal

quotation omitted). The second type of preliminary injunction, a mandatory injunction, goes well

beyond preserving the status quo and instead “orders a responsible party to take action.” Id. They

are generally disfavored and “not granted unless extreme or very serious damage will result,”

and they are not issued where the merits are doubtful or the injury complained of can be

compensated through damages. Id.

DISCUSSION

I. Whether Plaintiff is seeking a mandatory or prohibitory injunction.

As an initial matter, the Parties disagree as to whether Plaintiff is seeking a mandatory or

prohibitory injunction. This Court concludes that Plaintiff is seeking a prohibitory injunction.

The distinction between a mandatory and prohibitory injunction “can fairly be

categorized as one of action versus inaction.” Fellowship of Christian Athletes v. San Jose

Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 684 (9th Cir. 2023). Thus, “[t]he inquiry is whether

the party seeking the injunction seeks to alter or maintain the status quo.” Id. And the Ninth

Circuit has explained that “the status quo is ‘the legally relevant relationship between the parties

before the controversy arose.’” Id. (quoting Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053,

1060–61 (9th Cir. 2014)); cf Parks v. Lake Oswego Sch. Dist., 758 F. Supp. 3d 1247, 1260–61

(D. Or. 2024) (determining that a petitioner sought a mandatory injunction when his requested

relief was to be restored to the position that he had been fired from).

Here, the status quo between the Parties was when Plaintiff was able to display the books

in his office. In Fellowship of Christian Athletes, the Ninth Circuit cited the “longstanding

relationship between the parties” as the baseline from which the status quo should be determined.

82 F.4th at 685. There, the longstanding relationship was 20 years of the school district

recognizing the Fellowship of Christian Athletes as a student club before it refused to recognize

the group. Id. Here, the relationship between the parties is not as long, but it is no less

significant. Plaintiff had displayed Johnny the Walrus for multiple school years. But Plaintiff

only displayed He is He and She is She for several weeks. Nevertheless, it was IMESD’s

affirmative action that changed Plaintiff’s ability to use the books as decoration. Because

Plaintiff now seeks to restore that status quo in which he may display the books, the relief sought

is properly viewed as a prohibitory injunction. Although Plaintiff also seeks for Defendants to

remove the Letter of Directive, that too is a return to the status quo before the controversy arose.2

2 Moreover, as explained below, the Court declines to grant Plaintiff any preliminary injunctive

relief related to the Letter of Directive.

Thus, that relief does not subject the preliminary injunction to the more demanding standard of a

mandatory injunction.3

II. Whether Plaintiff has shown a likelihood of success on the merits of his claims.

Plaintiff has shown that he is likely to succeed on part of his First Amendment retaliation

claim insofar as IMESD has restricted his ability to display the books in his office and outside of

the presence of students. As for his remaining claims, he either cannot obtain any relief beyond

that which he can obtain on his First Amendment retaliation claim, or he cannot demonstrate a

likelihood of success on the merits of those claims.

A. Plaintiff’s First Amendment retaliation claim.

The protections of the First Amendment generally prohibit the government “from

retaliating or discriminating against individuals for engaging in protected speech.” Damiano v.

Grants Pass Sch. Dist. No. 7, 140 F.4th 1117, 1137 (9th Cir. 2025). And the Supreme Court has

continually recognized that neither teachers nor students “shed their constitutional rights to

freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 506 (1969). But their freedom of speech is not boundless, because “[i]n

addition to being private citizens, teachers and coaches are also government employees paid in

part to speak on the government’s behalf and convey its intended messages.” Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507, 527 (2022). Thus, “the government has ‘interests as an

employer in regulating the speech of its employees that differ significantly from those it

3 The Court’s conclusions throughout this Opinion would remain the same even under the more

demanding “mandatory” standard. “A district court should not issue a mandatory injunction

unless extreme or very serious damage will result, and especially not in doubtful cases or where

the injury complained of is capable of damages.” Parks, 758 F. Supp. 3d at 1261 (citation

modified). But injury to Plaintiff’s First Amendment rights is very serious damage that cannot be

properly compensated by damages. Compare id. (noting that no one was restricting the

petitioner’s right to exercise free speech as the case progressed).

possesses in connection with regulation of the speech of the citizenry in general.’” Damiano, 140

F.4th at 1137 (quoting Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Illinois,

391 U.S. 563, 568 (1968)). Due to that tension, the Supreme Court has created a framework to

analyze these situations that is a “‘fact-sensitive and deferential weighing of the government’s

legitimate interests’” against the First Amendment rights of public employees. Id. (quoting Bd. of

Cnty. Comm’rs, Wabaunsee Cnty., Kansas v. Umbehr, 518 U.S. 668, 677 (1996)).

In the Ninth Circuit, a First Amendment retaliation claim turns on a sequential five-step

series of questions:

(1) whether the plaintiff spoke on a matter of public concern; (2) whether the

plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s

protected speech was a substantial or motivating factor in the adverse

employment action; (4) whether the state had an adequate justification for treating

the employee differently from other members of the general public; and (5)

whether the state would have taken the adverse employment action even absent

the protected speech.

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).4 The plaintiff bears the burden on the first

three questions, and—if met—the burden shifts to the defendant on the remaining two questions.

Greisen v. Hanken, 925 F.3d 1097, 1108 (9th Cir. 2019).

Here, only the second and fourth questions are in dispute. The Parties agree that Plaintiff

spoke on a matter of public concern by addressing gender identity issues. 5 Reply 4, ECF 30;

Resp. 30. And they agree that Plaintiff’s speech was a motivating factor in the adverse action and

that the adverse action would not have been taken absent his speech. See Tr. 49:21–50:9. Based

4 The first two inquiries determine whether expression is “protected speech” under the First

Amendment. Dodge v. Evergreen Sch. Dist. #114, 56 F.4th 767, 777 (9th Cir. 2022).

5 Because the Parties agree that the display of the books amounted to speech on a matter of

public concern, this Court will not further analyze this prong. But the Court notes that the mere

display of a book whose contents contain matters of public concern does not automatically

constitute speech on a matter of public concern, particularly if the subject matter of the books is

not apparent from the display.

on the discussion of the remaining factors below, the Court concludes that Plaintiff has

established a First Amendment retaliation claim on which he is likely to succeed.

1. Whether Plaintiff spoke as a private citizen or public employee.

The Parties’ dispute primarily turns on one central question: did Plaintiff’s prominent

display of the books in his office constitute his private speech, or did it amount to government

speech attributable to IMESD? This Court concludes that when Plaintiff displayed the books

during testing sessions and interactions with students, it constituted speech attributable to

IMESD. But this Court also concludes that when Plaintiff displayed the books when no children

were present and only staff could view them, it constituted private speech.

The Supreme Court has—on several occasions—evaluated whether a government

employee spoke as a private citizen or a public employee. In Garcetti v. Ceballos, the Court

explained that “when public employees make statements pursuant to their official duties, the

employees are not speaking as citizens for First Amendment purposes, and the Constitution does

not insulate their communications from employer discipline.” 547 U.S. 410, 421 (2006)

(emphasis added) (concluding that a prosecutor was speaking as an employee because he wrote

the memo pursuant to his duties as a prosecutor); see also Lane v. Franks, 573 U.S. 228, 240

(2014) (“The critical question under Garcetti is whether the speech at issues is itself ordinarily

within the scope of an employee’s duties, not whether it merely concerns those duties.”). In

Lane, the Court concluded that an employee spoke as a private citizen when they testified at

criminal proceedings related to matters that they learned about in the course of their public

employment. 573 U.S. at 239–41 (noting that cases “dating back to Pickering have recognized

that speech by public employees on subject matter related to their employment holds special

value precisely because those employees gain knowledge of matters of public concern through

their employment”).

Most recently, the Court considered the distinction in Kennedy, 597 U.S. at 507. That

case involved a football coach who knelt midfield and prayed quietly for 30 seconds at the

conclusion of each game. Id. at 514–15. In concluding that his speech was private rather than

government speech, the Court stressed that “he was not engaged in speech ‘ordinarily within the

scope’ of his duties as a coach.” Id. at 529 (quoting Lane, 573 U.S. at 240). The Court noted he

was not speaking “pursuant to government policy,” “not seeking to convey a government-created

message,” and was not “engaged in any other speech the District paid him to produce as a

coach.” Id. at 529–30. Because his job allowed him and other coaches post-game time in which

to “engage in all manner of private speech,” it was not dispositive that he was merely within his

“office environment.” Id. at 530.

Shortly after Kennedy was decided, the Ninth Circuit considered the employee versus

private citizen distinction in Dodge, 56 F.4th at 767. The court explained that the distinction

“‘depends on the scope and content of [the employee’s] job responsibilities.’” Id. at 778 (citing

and quoting Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 966 (9th Cir. 2011)).6 It is

6 Defendants rely heavily on Johnson in support of their position. Resp. 8. Plaintiff retorts that

Kennedy “explicitly rejected” Johnson’s standards for “determining when teachers speak in their

official capacities.” Reply 4. This Court disagrees that Johnson was explicitly rejected by

Kennedy.

To be sure, Johnson must be reexamined in light of Kennedy. In Kennedy, the Supreme

Court rejected the Ninth Circuit’s “excessively broad” conception of the coach’s job. 597 U.S. at

530–31. And that excessively broad conception was primarily based on the Ninth Circuit’s

analysis in Johnson. See Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 824 (9th Cir. 2017).

Moreover, Johnson’s broad statement that “teachers necessarily act as teachers for purposes of a

Pickering inquiry when at school or . . . in the general presence of students,” 658 F.3d at 968

(emphasis in original), is of questionable precedential value in light of Kennedy’s direction to

consider the scope and context of the speech.

private speech if the person does not have an official duty to make the statements or “if the

speech was not the product of ‘performing the tasks [they were] paid to perform.’” Id. (citation

modified) (quoting Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127 n.2 (9th

Cir. 2008)). But in a school setting, when speech can be “reasonably viewed by students and

parents as officially promoted by the school” or is made by someone taking advantage of their

position to press their particular views upon children’s impressionable and captive minds, it is

properly considered speech by a public employee. Id. (citing Johnson, 658 F.3d at 967–68

(concluding that a teacher displaying banners with religious slogans spoke as a public

employee)).

This Court begins its inquiry by considering Plaintiff’s official responsibilities and duties

as an IMESD employee. There is no dispute as to what Plaintiff’s job entails: he administers

standardized tests to students in a one-on-one format in his offices at various locations within the

IMESD service area. Compl. ¶¶ 48–49. His job does not include decorating his office, but he

nevertheless did so in order to “make his office more kid friendly.” Id. at ¶ 111. And he planned

to supervise any inquiries about—or access to—He is He and She is She just as he had with

Johnny the Walrus, by waiting to discuss them until after the assessment was over. Id. at ¶ 129.

Plaintiff’s official job duties did not include displaying certain books or instructing on them. But

he displayed them while engaged in speech that IMESD paid him to produce as an Education

But the holding in Johnson is not “clearly irreconcilable” with Kennedy such that it is

impliedly overruled. See Miller v. Gammie, 335 F.3d 889, 890 (9th Cir. 2003) (en banc)

(addressing standards). If anything, Kennedy confirms Johnson’s conclusion that teachers act as

teachers when they are performing the tasks that they are paid to perform. Moreover, both the

Ninth Circuit—in Dodge—and the Eleventh Circuit in Wood v. Florida Dep’t of Educ., 142 F.4th

1286, 1291 (11th Cir. 2025), have extensively cited Johnson with approval since Kennedy was

decided. Thus, this Court disagrees that Kennedy explicitly overruled the Ninth Circuit’s holding

in Johnson and related cases.

Specialist. Moreover, by displaying the books prominently behind his desk—indeed, they were

the only decorations in his office—the display can be reasonably viewed as being promoted by

the school or as the efforts of an employee to press his particular views upon students. Therefore,

this Court concludes that Plaintiff spoke as an IMESD employee when he displayed the books

while students were present.7

But this Court declines to conclude that Plaintiff’s display of the books was entirely

speech attributable to IMESD. Plaintiff left the books visible whether or not students were

present. And that difference is significant. In Dodge, the Ninth Circuit considered whether a

teacher was speaking as a private citizen or a public employee when he wore a “Make America

Great Again” (“MAGA”) hat “while attending a teacher-only training.” 56 F.4th at 778. Because

he wore it when no students were around, the court determined that parents and students could

not reasonably attribute the message to the school, and that he was not trying to press his views

on impressionable or captive students. Id. Thus, it concluded that the teacher spoke as a private

citizen when wearing the hat. Id.

This Court reaches a similar conclusion with respect to Plaintiff’s display when no

students were present in his office. Plaintiff’s LGMS office had a “Staff Only” sign, Compl. ¶ 71,

and there is no identified risk that parents or students could enter the office without him present

and view the display. Although Plaintiff may have been writing reports or conducting other job-

related activities while the books were displayed, it is not enough that the display was in his

7 Plaintiff argues that, because his official duties had no relation to the subject matter of the

books, his display of the books was not speech as an employee. Mot. 30–31. But “teachers do not

cease acting as teachers each time the bell rings or the conversation moves beyond the narrow

topic of curricular instruction.” Johnson, 658 F.3d at 967–68. As such, there is no basis to

distinguish between an employee’s curricular and non-circular speech, at least when that speech

is directed to students in the course the teacher’s official duties. See Wood, 142 F.4th at 1292 (so

holding).

“office environment.” When no students were present in Plaintiff’s office, the message of the

books would not be reasonably attributable to IMESD, and the display could not press Plaintiff’s

views on impressionable or captive students. See Dodge, 56 F.4th at 778.

In summary, Plaintiff 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 displaying the books outside the presence of students, Plaintiff spoke as a private citizen

and was therefore protected by the First Amendment.

2. Whether Defendants had an adequate justification for treating

Plaintiff differently than members of the general public.

During oral argument, Defendants argued that their countervailing interest in regulating

speech was complying with Oregon’s anti-bias law. See Tr. 47:9–22. But this Court finds that

Defendants have failed to show that they have a legitimate administrative interest outweighing

Plaintiff’s right to display the books when students are not present.8

“Under the Pickering balancing test, the ultimate question is whether the government’s

legitimate administrative interests outweigh the employee’s right to engage in the expressive

activity at issue.” Damiano, 140 F.4th at 1138. This question evaluates whether the governmental

entity has an adequate justification for treating the employee differently than a member of the

general public. Eng, 552 F.3d at 1071. And although it recognizes that a governmental entity has

some discretion in restricting speech in its role as an employer, those restrictions “‘must be

directed at speech that has some potential to affect the entity’s operations.’” Id. (quoting

Garcetti, 547 U.S. at 418). For example, if the government cites its interest “as an employer in a

8 Because this Court concludes that only Plaintiff’s display of the books when students are not

present is entitled to First Amendment protection, its analysis about Defendants’ interests is

limited to the display when students are not present.

smoothly-running office,” then it must show that the plaintiff’s protected First Amendment

expression presents an “actual, material and substantial disruption,” or demonstrate “reasonable

predictions of disruption in the workplace.” Robinson v. York, 566 F.3d 817, 824 (9th Cir. 2009)

(citation modified). Although complaints from the public or fellow employees about an

employee’s speech may suffice, they must be considered in context to determine whether they

reach a sufficient level of disruption. Damiano, 140 F.4th at 1144 (citing cases evaluating

whether coworker complaints were sufficient disruption).

Defendants have failed to meet their burden to show that Plaintiff’s display of the books

when no students are present adversely impacts its interests. There was one bias incident

complaint about Plaintiff’s display in his LGMS office. VanNice Decl. ¶ 10, ECF 28. And that

complaint was substantiated “because of the impact that the expression would have on the

environment for the students [Plaintiff] serves.” Id. at ¶ 11. Because this Court concluded that

only Plaintiff’s display of the books when no students are present is entitled to First Amendment

protection, that cited concern is unavailing. And although VanNice’s declaration also references

the potential impact for staff and visitors, id., this Court finds that 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. 9 This Court recognizes that Defendants are required to comply

9 Plaintiff argues that “the Speech Policy facilitates a heckler’s veto.” Mot. 20–22. Even if this

assertion is correct, it does not change the analysis. “[T]he First Amendment generally does not

permit the so-called ‘heckler’s veto,’” in which the public—with the government’s help—can

“shout down unpopular ideas that stir anger.” Damiano, 140 F.4th at 1145 (citation modified).

But the heckler’s veto, and disruption related to speech more generally, is a consideration for

evaluating the government’s justification under Pickering balancing. Because the IMESD has not

justified its restrictions on Plaintiff’s private speech, it is not necessary to consider whether those

restrictions amount to a heckler’s veto.

with Oregon law. But citing statutory requirements does not change their burden to justify their

restrictions on Plaintiff’s First Amendment rights.

In sum, this Court finds that Defendants have failed to show an adequate justification to

require Plaintiff to not display the books when no students are present. Therefore, Plaintiff has

shown that he is likely to succeed—in part—on the merits of his First Amendment retaliation

claim.

B. Plaintiff’s remaining First Amendment speech-based claims.

Plaintiff argues that strict scrutiny, rather than Pickering, should be used to evaluate his

First Amendment speech-based claims because IMESD engaged in content and viewpoint

discrimination, Mot. 15, and the ESB policy amounts to a prior restraint on speech, id. at 22.

Plaintiff further argues that, because strict scrutiny applies, he is entitled to broad relief

permitting him to display the books at all times. Reply 27. This Court disagrees.

To begin with, Pickering applies to all of Plaintiff’s remaining speech-related claims

under the First Amendment. In Damiano, the Ninth Circuit confirmed that “as-applied, content-

and viewpoint-based discrimination claims are subject to the Pickering analysis.” Damiano, 140

F.4th at 1149. And in Moonin v. Tice, 868 F.3d 853, 861 (9th Cir. 2017), the court explained that

a “similar analysis” to Pickering “is used when assessing prospective restrictions on government

speech.” Thus, in the context of public employment, each of those claims first rests on the

distinction between protected private speech and unprotected “speech uttered pursuant to public

employees’ official duties.” Id.; see also Dodge, 56 F.4th at 786 (analyzing viewpoint

discrimination after concluding that wearing a MAGA hat at a teacher-only training was

protected private speech). Then, Pickering balancing applies, requiring the government to justify

restrictions on an employee’s protected speech. See, e.g., Moonin, 868 F.3d at 864–65

(describing the government’s burden when it seeks to justify imposing a prior restraint on an

employee’s protected speech); see also Page v. Clark Cnty. Fire Dist. 6, No. 3:23-CV-05849-

DGE, 2024 WL 4665789, at *11 (W.D. Wash. Nov. 4, 2024) (noting that “[t]he Pickering

analysis applies to prospective restrictions on government employee speech[.]”).

Ultimately, this Court need not determine whether Plaintiff is likely to succeed on the

merits of his remaining First Amendment speech-based claims because they would afford him no

more relief than his retaliation claim. As explained, Pickering applies to these claims. And the

Court has concluded that Plaintiff spoke as a public employee by prominently displaying the

books while students were present. Thus, even if Defendants engaged in content and viewpoint

restriction, and even if the ESB policy amounted to a prior restraint, Plaintiff still would not be

permitted to display the books to students. Conversely, because Plaintiff has already

demonstrated that displaying the books outside the presence of students was protected by the

First Amendment—and Defendants have failed to justify restricting his display—he has already

shown that he is entitled to relief from that restriction.

In sum, Pickering applies to all of Plaintiff’s First Amendment speech-based claims, and

whether Plaintiff is likely to succeed in showing that Defendants engaged in content or viewpoint

discrimination or that the ESB policy was a prior restraint does not impact the scope of relief to

which he is entitled.

C. Plaintiff’s free exercise claim.

As a threshold matter, Plaintiff has not met his burden of establishing a free exercise

violation by Defendants. Accordingly, he is unlikely to succeed on the merits of his free exercise

claim, and it is unnecessary for this Court to engage in Pickering balancing with respect to this

claim.10

1. Legal standards.

The Free Exercise Clause provides that “Congress shall make no law . . . prohibiting the

free exercise” of religion. U.S. Const. amend. I. And it applies “to the States under the terms of

the Fourteenth Amendment.” Kennedy, 597 U.S. at 524. Importantly, it protects both inward

beliefs and outward expressions of those beliefs. Id.

“[A] plaintiff may carry the burden of proving a free exercise violation in various ways,

including by showing that a government entity has burdened [their] sincere religious practice

pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’” Id. If a plaintiff makes that

showing, then the government must satisfy “strict scrutiny by demonstrating its course was

justified by a compelling state interest and was narrowly tailored in pursuit of that interest.” Id.

Conversely, a policy “that is neutral and of general applicability need not be justified by a

compelling governmental interest even if the law has the incidental effect of burdening a

particular religious practice.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

10 Plaintiff argues that Pickering does not apply to his free exercise claims. Mot. 12-15. This

Court is bound by prior decisions of the Ninth Circuit holding that Pickering balancing also

applies to Plaintiff’s free exercise claim. To be sure, Kennedy expressly left open the issue of

whether Pickering applies in the context of a free exercise claim. Kennedy, 597 U.S. at 532. But

the Ninth Circuit has a “practice of applying a balancing test when confronted with constitutional

challenges to restrictions on public employee speech in the workplace.” Berry v. Dep’t of Soc.

Servs., 447 F.3d 642, 649–50 (9th Cir. 2006). That extends to a public employer’s restrictions on

displays of religious items. Id. at 651 (applying Pickering balancing when an employer refused

to allow the plaintiff to display a Bible on his desk or have a “Happy Birthday Jesus” sign). In

the absence of contravening caselaw from the Supreme Court, this Court is bound by Ninth

Circuit precedent. United States v. Brown, 720 F. Supp. 3d 1020, 1026 (D. Or. 2024) (explaining

that district courts in the Ninth Circuit are bound by circuit court precedent unless that caselaw is

clearly irreconcilable with reasoning or theory of higher authority). Accordingly, Pickering

balancing would apply to Plaintiff’s free exercise claim if Plaintiff could otherwise meet his

burden of demonstrating a free exercise claim.

520, 531 (1993). The policy is instead subject to rational basis review. Tingley v. Ferguson, 47

F.4th 1055, 1077 (9th Cir. 2022). And under rational basis review, the policy is presumed valid

and will be sustained if the government shows that it is rationally related to a legitimate state

interest. Id. at 1078 (citation modified).

A policy is not neutral “if the object of [it] is to infringe upon or restrict practices because

of [its] religious motivation.” Church of Lukumi Babalu Aye, Inc., 508 U.S. at 533. A court may

analyze the facial neutrality of a policy by examining its text, and it may also determine a policy

is not neutral by examining the effect of the policy. Id. at 533–35 (“The Free Exercise clause

protects against governmental hostility which is masked as well as overt.”); see also Masterpiece

Cakeshop v. Colorado C.R. Comm’n, 584 U.S. 617, 639 (2018) (evaluating whether an

adjudicatory body’s statements during its decision-making process evinced “hostility to religion”

that were inconsistent with the requirements of the Free Exercise clause). Even if the policy has

an adverse impact on religious practices, it may still be considered “neutral” if the government is

addressing a legitimate concern “for reasons quite apart from discrimination.” Church of Lukumi

Babalu Aye, Inc., 508 U.S. at 535.

A policy “is not generally applicable if it invites the government to consider the particular

reasons for a person’s conduct by providing a mechanism for individualized exemptions.” Fulton

v. City of Philadelphia, Pennsylvania, 593 U.S. 522, 533 (2021) (citation modified). It is also not

generally applicable “if it prohibits religious conduct while permitting secular conduct that

undermines the government’s asserted interests in a similar way.” Id. at 534.

2. Analysis.

Plaintiff has failed to show that Defendants impermissibly burdened his sincere religious

practice pursuant to its Speech Policy.

To begin with, Plaintiff has failed to show that Defendant’s Speech Policy is not neutral.

There is no indication that the ESB Policy restricts any religious practices because of their

religious motivations. Indeed, the policy explicitly seeks to prevent discrimination or harassment

based on religion. And even if the ESB Policy adversely impacted religious practices, it is

addressing the legitimate concern of ensuring an open and welcoming school environment for all

students and employees.

Plaintiff also has not shown that Defendants were “hostile” towards his religious beliefs.

In Masterpiece Cakeshop, the Court noted that a commissioner disparaged the petitioner’s faith,

including by comparing his invocation of his beliefs to “defenses of slavery and the Holocaust,”

and demeaned it by characterizing it as a “despicable piece[] of rhetoric.” 584 U.S. at 635. Those

comments, combined with the failure of other commissioners to object or disavow them, led the

Court to conclude that the Commission demonstrated hostility towards Plaintiff’s religion and

otherwise cast doubt on the fairness and impartiality of the Commission. Id. at 636–37. Here,

VanNice asked about the pages in She is She that contained Bible verses. Compl. ¶¶ 118–20. And

she asked whether the Bible supports “they/them.” Id. at ¶ 121. This Court finds that those

inquiries—particularly when compared to the statements in Masterpiece—do not support a

finding or inference that Defendants were motivated by hostility toward Plaintiff’s religion.

Finally, the Court concludes that Plaintiff has failed to show that the Speech Policy is not

generally applicable. It prohibits all bias incidents, regardless of their motivation. And it does not

provide any mechanism for individualized exceptions that would invite IMESD to consider the

reasons for the conduct.

Because the Speech Policy is neutral and generally applicable, it is presumed valid.11

Plaintiff has therefore failed to show that he is likely to succeed on the merits of his free exercise

claim.

D. Plaintiff’s equal protection claim.

Even if Plaintiff is likely to succeed on the merits of his Equal Protection Clause claim—

which this Court does not resolve—he would not be entitled to any greater relief than that

afforded to him by his First Amendment retaliation claim. Thus, this claim does not change the

scope of the preliminary injunction to which he is entitled.

The Ninth Circuit has “held that allegations of disparate treatment based on viewpoint

give rise to a cognizable equal protection claim.” Damiano, 140 F.4th at 1150. But the distinction

between private speech and speech on behalf of a government employer remains critical, because

“the government has the right to speak for itself, and, when it does, it is entitled to say what it

wishes and to select the views that it wants to express.” Johnson, 658 F.3d at 975 (citation

modified); see also Garcetti, 547 U.S. at 421–22 (“Restricting speech that owes its existence to a

public employee’s professional responsibilities does not infringe any liberties the employee

might have enjoyed as a private citizen. It simply reflects the exercise of employer control over

what the employer itself has created or commissioned.”). But if a public employee brings an

equal protection claim based on protected, private speech, “the government may defend against

the claim by showing that its legitimate interests outweigh the public employee’s speech rights

under Pickering.” Damiano, 140 F.4th at 1151.

11 Because Plaintiff does not argue that the Speech Policy would fail rational basis review, see

Mot. 10–15, the Court declines to further engage in that analysis.

Plaintiff’s likelihood of success on the merits of his Equal Protection Clause claim

depends upon the Court’s conclusion that he spoke as an employee when displaying the books

when students were present. IMESD is entitled to select the views that it wishes to express,

including by way of deciding which books are appropriate for display. 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. Therefore, it is unnecessary to separately consider

Plaintiff’s equal protection claim because it does not change the scope of the preliminary

injunction to which he is entitled.

E. Plaintiff’s Due Process Clause claim.

Plaintiff argues that the Speech Policy violates his Fourteenth Amendment Due Process

Clause rights because it (1) fails to give employees adequate notice of when it applies and (2)

lacks explicit standards for those who apply it. Mot. 38–39. The Court finds that Plaintiff has not

demonstrated that he is likely to prevail on this claim.

“The operative question under the fair notice theory is whether a reasonable person

would know what is prohibited.” Tingley, 47 F.4th at 1089. It must give “a person of ordinary

intelligence fair notice of what is prohibited.” United States v. Williams, 553 U.S. 285, 304

(2008). And it may not be “so standardless that it authorizes or encourages seriously

discriminatory enforcement.” Id.

“When First Amendment freedoms are at stake, courts apply the vagueness analysis more

strictly, requiring statutes to provide a greater degree of specificity and clarity than would be

necessary under ordinary due process principles.” California Tchrs. Ass’n v. State Bd. of Educ.,

271 F.3d 1141, 1150 (9th Cir. 2001). That is because “First Amendment freedoms need breathing

space to survive.” N.A.A.C.P. v. Button, 371 U.S. 415, 432–33 (1963); see also Grayned v. City of

Rockford, 408 U.S. 104, 109 (1972) (“Uncertain meanings inevitably lead citizens to steer far

wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.”).

Nevertheless, even when First Amendment rights are implicated, some uncertainty is permissible

because “‘we can never expect mathematical certainty from our language.’” California Tchrs.

Ass’n, 271 F.3d at 1150 (quoting Grayned, 408 U.S. at 110).

Here, this Court finds that Plaintiff has failed to show that the Speech Policy violates his

due process rights. First, the ESB Policy defines what it proscribes: a “‘[b]ias incident’ means a

person’s hostile expression of animus toward another person, relating to the other person’s

perceived race, color, religion, gender identity, sexual orientation, disability or national origin . .

. .” Ex. E 1 (emphasis added). Plaintiff takes issue with its prohibition of “hostile expression[s]

of animus.” See Mot. 39 (“whatever that is”). But when interviewed, he understood that term to

mean an act of ill will. Ex. K 6; see also Ex. L at 4 (“I understand it as being an[] act towards

someone.”). And other definitions that he included in his appeals aligned with that

understanding. See, e.g. Ex. M 4 (“Hostile expression of animus is defined as ‘an act, word, or

other medium that conveys deep-seated ill will, antagonism, or hostility towards another person .

. . .’”). Even applying the stricter First Amendment standard for vagueness, this Court concludes

that the ESB policy gave Plaintiff fair notice of what was prohibited. A person of ordinary

intelligence would understand that bias incidents were expressions of ill will directed toward

another person based on their protected characteristics. Although Plaintiff clearly disputes

whether his display constituted such a bias incident, that is a separate inquiry from whether the

ESB Policy is so vague as to violate his due process rights.

Moreover, the Speech Policy included standards for enforcement. The Bias Incident

Policy includes a four-step process for investigations and appeals of reported incidents. See Ex. F

1–2. It is a detailed process with multiple parties, and it is grounded in the terms of the ESB

Policy, which itself reflects standards set by Oregon law. At this stage, Plaintiff has not shown

that it authorizes or encourages discriminatory enforcement. Again, Plaintiff’s disagreement with

the results of the process does not mean the policy violates due process.

In sum, Plaintiff has failed to show that he is likely to succeed on the merits of his Due

Process Clause claim.

III. Whether the remaining preliminary injunction factors favor Plaintiff.

As discussed below, the remaining preliminary injunction factors favor Plaintiff, at least

insofar as the injunction would allow Plaintiff to display the books when no students are present.

A. Whether Plaintiff has shown a likelihood of irreparable injury.

Plaintiff has demonstrated that irreparable injury is likely in the absence of an injunction.

In the Ninth Circuit, “a party seeking preliminary injunctive relief in a First Amendment context

can establish irreparable injury sufficient to merit the grant of relief by demonstrating the

existence of a colorable First Amendment claim.” Warsoldier v. Woodford, 418 F.3d 989, 1001

(9th Cir. 2005) (citation modified). That standard recognizes that “the loss of First Amendment

freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012).

For the reasons discussed above, Plaintiff has demonstrated a likelihood of prevailing in

part on his First Amendment retaliation claim. Therefore, he has shown a likelihood of

irreparable injury warranting a preliminary injunction.

B. Whether the balance of equities tips in favor of Plaintiff and an injunction is

in the public interest.

As noted, the final two Winters factors—whether the balance of equities tips in the

movants favor and whether an injunction is in the public interest—merge when the party

defending against a preliminary injunction is a public entity. Parks, 758 F. Supp. 3d at 1266.

“When balancing the equities, ‘a court must identify the possible harm caused by the preliminary

injunctions against the possibility of the harm caused by not issuing it.’” Id. (quoting Univ. of

Hawai’i Pro. Assembly v. Cayetano, 183 F.3d 1096, 1108 (9th Cir. 1999). A court should weigh

the hardships of each party and “‘pay particular regard for the public consequences in employing

the extraordinary remedy of injunction.’” Id. (quoting Winter, 555 U.S. at 24).

These remaining factors favor Plaintiff. As explained above, Defendants failed to make

any showing that they would experience any hardships or disruptions should the injunction be

granted, particularly given the limited scope imposed by the Court. And the Court cannot identify

any public consequence in allowing Plaintiff to privately display the books in his office when

students are not present. Therefore, these remaining factors favor granting a preliminary

injunction.

IV. Scope of injunctive relief.

Having concluded that Plaintiff is likely to succeed on parts of his claims and that the

remaining Winter factors favor granting injunctive relief, the Court turns to the scope of relief to

which Plaintiff is entitled.

“Once a constitutional violation is found, a federal court is required to tailor the scope of

the remedy to fit the nature and extent of the constitutional violation.” Hills v. Gautreaux, 425

U.S. 284, 293–94 (1976) (citation modified). “The general rule regarding the scope of

preliminary injunctive relief is that it ‘should be no more burdensome to the defendant than

necessary to provide complete relief to the plaintiffs before the court.’” Regents of the Univ. of

California v. U.S. Dep't of Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018), rev'd in part,

vacated in part, 591 U.S. 1 (2020) (citation omitted). And “where relief can be structured on an

individual basis, it must be narrowly tailored to remedy the specific harm shown.” City & Cnty.

of San Francisco v. Trump, 897 F.3d 1225, 1244 (9th Cir. 2018) (citation modified).

Plaintiff seeks to be able to prominently display the books in his office at all times. But as

explained, only his display when no students are present is protected under the First Amendment.

Therefore, the Court GRANTS Plaintiff’s request to resume displaying the books in his IMESD

offices, but he may only do so when no students are present. Moreover, Defendants may not take

disciplinary action against Plaintiff—related to displays of the books—that is inconsistent with

the relief granted by this Court.

Plaintiff also requests that the Letter of Directive be removed from his personnel file. But

the Letter of Directive was based, at least in part, on the display of books to students. Indeed, 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. Compl. ¶

160 (emphasis added); Ex. G 2. 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 Court therefore DECLINES to grant his request for

the Letter of Directive to be removed from his file.

V. Security.

Plaintiff asks this Court to waive the security requirement of Rule 65(c). Mot. 3. “The

court may issue a preliminary injunction or a temporary restraining order only if the movant

gives security in an amount that the court considers proper to pay the costs and damages

sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P.

65(c). “Despite the seemingly mandatory language, Rule 65(c) invests the district court with

discretion as to the amount of security required, if any.” Johnson v. Couturier, 572 F.3d 1067,

1086 (9th Cir. 2009) (internal quotations omitted). “In particular, the district court may dispense

with the filing of a bond when it concludes there is no realistic likelihood of harm to the

defendant from enjoining [their] conduct.” /d. (citation modified). The Court concludes that

Plaintiff should not be required to pay a security because the injunction entered is narrow and not

likely to harm Defendants.

CONCLUSION

The Court GRANTS IN PART Plaintiff’s Motion for Preliminary Injunction, ECF 12.

Defendants Intermountain Education Service Board of Directors, Mark Mulvihill, and Aimee

VanNice ARE HEREBY ENJOINED from taking disciplinary action against Plaintiff Roderick

Theis if he chooses to resume displaying the books He is He, She is She, or Johnny the Walrus in

any of his offices within the IMESD service area while the children that he serves are not present

in those office spaces. At this time, this Court DECLINES to grant Plaintiff’s request that the

Letter of Directive be removed from his personnel file because it was based, at least in part, on

his display of the books when students were present. This injunction takes effect immediately

and remains in effect during the pendency of this lawsuit unless modified by a final judgment or

other order of the Court, the agreement of all parties, or any binding change in the law.

IT IS SO ORDERED.

DATED this 20th day of August, 2025 iA

ANDREW HALLMAN

United States Magistrate Judge

33 OPINION & ORDER