Seventh Circuit Upholds Indiana Ban on Sexuality Instruction in Pre-K Through Third Grade

Kayla Smiley, a teacher hired to instruct grades 1–3 in the Indianapolis Public School system, challenged Indiana House Enrolled Act 1608 as facially overbroad and vague under the First and Fourteenth Amendments. She argued the statute chilled her protected speech, including placing pro-LGBTQ+ stickers on her car and water bottle, providing classroom books touching on gender and sexual identity, and correcting students who used pejorative terms related to sexual identity.

The court held that the statute was not overbroad because it likely did not implicate a substantial amount of protected speech. The Seventh Circuit reasoned that primary public school teachers have limited speech rights and that their in-classroom instruction constitutes official speech that receives no First Amendment protection.

The court distinguished Smiley's classroom library choices from private speech, noting that providing books to students in the classroom is part of her role as a teacher. While the court acknowledged that stickers on a car or water bottle might qualify as protected speech in some instances, it found these examples few relative to the plainly legitimate sweep of the statute.

Regarding the vagueness claim, the court held that the terms instruction and human sexuality possess an ascertainable core of meaning. The court noted that instruction commonly refers to the imparting of knowledge for a pedagogical purpose, while human sexuality encompasses sex education, sexually transmitted diseases, anatomy, and sexual orientation.

The court emphasized that close cases or edge questions do not render a statute unconstitutionally vague. It stated that resolving such questions is a principal role of the courts and that Smiley could pursue an as-applied challenge if specific applications of the statute proved problematic.

The Seventh Circuit also rejected the argument that the statute lacked standards for enforcement, noting that the core meaning of the law made arbitrary enforcement unlikely. The court affirmed the district court's judgment, citing the high bar for facial invalidation and the state's historical discretion in primary education.