In 2023, Indiana enacted House Enrolled Act 1608, which prohibits public schools and teachers from providing instruction on human sexuality to students in prekindergarten through third grade. Kayla Smiley, a teacher hired to instruct grades 1–3, filed a federal lawsuit under 42 U.S.C. § 1983, challenging the law as facially overbroad and vague in violation of the First and Fourteenth Amendments. Smiley argued that the undefined terms 'instruction' and 'human sexuality' would chill her protected speech, such as selecting books on gender identity for her classroom library or correcting students' use of pejorative terms. She sought a preliminary injunction to block the law before it took effect. The district court denied the injunction, finding that Smiley failed to show a likelihood of success on her claims because her intended speech was likely official speech unprotected by the First Amendment and the statute possessed a discernable core of meaning.
The Seventh Circuit, writing for the panel, affirmed the lower court's decision by analyzing Smiley's claims under the standards for facial challenges. First, regarding the First Amendment overbreadth claim, the court applied the principle that public school teachers' speech made pursuant to their official duties is not protected. The court reasoned that 'instruction' within the statute refers to the imparting of knowledge for a pedagogical purpose, which includes in-class lessons and spontaneous lectures on school grounds. Because Smiley's intended activities—such as teaching lessons or correcting student behavior regarding sexual identity—fall within her official duties, they are not protected speech. The court noted that while private speech exists, such as views shared in a teachers' lounge, Smiley's specific examples of classroom books and stickers were directed at students in a teaching capacity. Consequently, the statute does not prohibit a substantial amount of protected speech relative to its legitimate sweep. Second, on the vagueness claim, the court held that the terms 'instruction' and 'human sexuality' have an ascertainable core of meaning. 'Instruction' commonly means teaching, and 'human sexuality' encompasses sex education and related biological topics. The court emphasized that the statute is not void for vagueness simply because 'edge cases' exist; rather, the core meaning is clear, and any ambiguity at the margins can be resolved through as-applied challenges or state court interpretation. The court also rejected the argument that the lack of specific enforcement standards in the statute invites arbitrary enforcement, noting that licensing actions for curriculum violations are rare and that the core meaning of the law makes arbitrary application unlikely.
The Indiana law restricting human sexuality instruction in grades pre-K through 3 remains in effect. The denial of the preliminary injunction means Smiley must comply with the statute while teaching, and the law will not be blocked pending a full trial on the merits. The decision leaves open the possibility for future as-applied challenges if the statute is enforced in a manner that specifically targets protected private speech or if state courts provide further clarification on the undefined terms.
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