Ninth Circuit Draws Line Between Private Prayer and School Work

A Ninth Circuit ruling is giving public-school districts and employees a more specific constitutional line to consider when personal views appear in student-facing settings.

In an opinion filed July 21, 2026, the court affirmed the denial of preliminary injunctive relief sought by an Oregon education specialist who challenged an order requiring him to remove three children’s books from offices where he met with and evaluated students.

The ruling does not finally resolve the underlying First Amendment claims. It addresses preliminary relief while the case proceeds and leaves room for further proceedings or appellate review.

What the court decided

The case, Theis v. InterMountain Education Service District, involves Roderick E. Theis II, a licensed clinical social worker who worked as an Education Specialist for the Oregon regional education service district. His duties included assessing students, administering standardized tests, preparing reports and consulting with educators.

Theis displayed two books, He Is He and She Is She, in an office at La Grande Middle School. He displayed Johnny the Walrus in an office in the Elgin School District. The Ninth Circuit opinion said the books were visible to students during evaluations and meetings, and that Theis acknowledged displaying them while meeting with students as part of his job.

After a complaint, the district concluded that the displays violated its policy addressing bias incidents and directed Theis to remove the books when students were present. The district court allowed the displays when students were absent but denied protection for student-facing situations. The Ninth Circuit affirmed that decision.

The majority held that the displays were made in the course of Theis’s official duties. The court relied on Garcetti v. Ceballos and Ninth Circuit precedent treating speech connected to assigned, student-facing educational work as government-employee speech rather than private citizen expression.

The majority emphasized the employee’s role, the offices where he was assigned to work, the presence of students and the connection between the displays and evaluations or meetings. It said the expression “owed its existence” to Theis’s professional responsibilities and could not be meaningfully separated from them.

Because the majority concluded that the displays fell outside First Amendment coverage under that analysis, it did not reach the separate balancing test commonly associated with Pickering v. Board of Education.

Why the court distinguished Kennedy

Theis relied in part on the Supreme Court’s 2022 decision in Kennedy v. Bremerton School District. In that case, the Supreme Court protected a football coach’s brief, quiet and personal prayer after his professional responsibilities had ended.

The Ninth Circuit said Kennedy did not eliminate the longstanding difference between private employee expression and speech made while performing official duties. In the majority’s view, Coach Kennedy’s prayer was detached from his work, while Theis’s displays appeared in offices during student-facing evaluations and meetings.

The ruling does not mean public-school employees lose all protection for religious expression. The court’s stated inquiry turns on factors including the employee’s role, the setting, the audience and the connection between the expression and assigned duties. Visibility to students alone was not the controlling test.

That distinction is also reflected in the Fifth Circuit’s March 2026 decision in Barber v. Rounds. That case allowed a teacher’s claims to proceed after she alleged that a principal imposed a categorical ban on private prayer whenever students might see it. The Fifth Circuit said Kennedy clearly established that private religious expression outside official duties cannot be prohibited merely because students may observe it.

What the dissent argued

Judge Lawrence VanDyke dissented from the Ninth Circuit’s decision. He argued that the books were personal office decorations rather than government speech and that Theis’s expression should receive protection under the framework for public employees’ private speech.

VanDyke also argued that the majority’s approach could not be reconciled with Kennedy, which recognized that some employee expression remains private even when it is visible to students on school grounds. In his view, the books addressed a matter of public concern and the record did not show enough disruption to outweigh Theis’s speech interests under Pickering.

The disagreement leaves an important question unresolved: when personal materials remain in a public employee’s workspace, when do they remain private expression, and when do they become part of the employee’s official educational work?

How federal guidance fits

The U.S. Department of Education issued updated guidance on constitutionally protected prayer and religious expression in public elementary and secondary schools on February 5, 2026.

The guidance says public-school teachers and other employees do not forfeit their First Amendment rights at the schoolhouse gate. It states that employees must generally be permitted to pray at work on the same terms as students, unless the prayer coerces others or functions as official speech of the school. It also says employees may not deliver prayers on behalf of the school or pressure students to participate.

The guidance is administrative guidance, not a statute or a new Supreme Court ruling. Its distinction between private expression and official school activity is consistent with the boundary the Ninth Circuit emphasized, but the guidance does not decide the facts of Theis or replace the court’s constitutional analysis.

What employees and districts should watch

Teachers, counselors, evaluators and other public-school employees should distinguish personal expression outside official duties from materials or messages presented during instruction, counseling, evaluations, meetings or other student-facing work.

Districts may have greater authority to regulate displays they reasonably treat as part of an employee’s official educational duties. But the Ninth Circuit decision does not establish a categorical ban on religious expression by public-school employees, and it does not settle every classroom, office or religious-display dispute.

For districts, the practical issue will be whether a display is merely personal expression in a workspace or whether it is reasonably understood as part of the employee’s assigned communication with students. For employees, the distinction may depend on whether the expression occurs during official duties, is directed at students or is connected to instruction, evaluation or counseling.

The case remains interlocutory, meaning the merits are unresolved. Further proceedings in the lower court or additional appellate review could refine how the boundary applies to school offices, classrooms and other settings where personal expression and official responsibilities overlap.

Sources

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