Indiana Ban on “Instruction” “on Human Sexuality” in Pre-K to Third Grade Upheld by Seventh Circuit

From Smiley v. Jenner, decided yesterday by Seventh Circuit Judge Michael Scudder, joined by Judges Candace Jackson-Akiwumi and Doris Pryor:

Indiana law establishes curriculum requirements for certain schools within the state. In 2023, the state General Assembly passed Indiana House Enrolled Act 1608 [codified at Section 20-30-17-2], which added a new curriculum limitation:

A school, an employee or staff member of a school, or a third party vendor used by a school to provide instruction may not provide any instruction to a student in prekindergarten through grade 3 on human sexuality.

By its terms, HEA 1608 allows teachers to “respond[ ] to a question from a student” on human sexuality. It also permits teachers to instruct on academic standards “developed by the department [of education]” on enumerated subjects (such as science and math) and to provide required instruction on child abuse and child sexual abuse notwithstanding the restriction imposed by the curriculum limitation. But the General Assembly otherwise left the terms “instruction” and “human sexuality” undefined….

Plaintiff, who teaches “grades 1–3” sued, alleging that the law would “capture, or at least chill, protected speech that she primarily wishes to engage in while serving as an elementary school teacher,” “such as the choice to include books in her classroom library that touch on topics of parenting, and gender and sexual identity, to place stickers on her water bottle and car communicating pro-LGBTQ+ messages, and to correct students when they use pejorative terms related to sexual identity.” She also “worries that, with no discernable boundaries as to what constitutes ‘instruction’ or ‘human sexuality,’ she may unintentionally run afoul of the statute and risk losing her teaching license.”

But the court rejected her overbreadth and vagueness challenges. It began by determining what “instruction” the law covers:

While the General Assembly did not define “instruction,” the term most commonly means “the action, practice, or profession of teaching,” and “knowledge or authoritative guidance imparted by one person to another.” Section 20-30-17-2 resides in Article 30 of the Indiana Code, entitled “Curriculum,” which, as its title implies, concerns teacher and school staff interactions with students on school grounds and in connection with academic requirements or school-sanctioned activities.

Applying this common meaning within its statutory context, we see “instruction” as limited in the main to a teacher’s efforts to impart knowledge for a pedagogical purpose…. Section 20-30-17-2 at least applies to Pre-K–3 classroom instruction—the delivery of educational lessons and content to students. On this, the parties agree.

The court concluded that, so read, the law was not substantially overbroad:

[I]n-classroom instruction [by K-12 teachers] does not enjoy First Amendment protection. … “[I]n-classroom instruction necessarily constitutes ‘statements pursuant to [the teacher’s] official duties.'” This is true whether a teacher delivers a formal lesson pursuant to a curriculum mandate or gives a spontaneous lecture…. [Likewise,] Ms. Smiley’s anticipated need to “quell student misbehavior” by educating them on the use of pejorative terms related to sexual identity such as “gay” is [also part of her official duties and thus] not protected speech, whether it occurs in a classroom, a hallway, or elsewhere on school grounds….

[T]he Constitution “does not entitle [primary and secondary school] teachers to present personal views to captive audiences against the instructions of elected officials.” … [A] teacher’s “inordinate amount of trust and authority” makes the government’s interest in a school’s educational environment more compelling ….

Ms. Smiley nevertheless urges us to conclude that her provision of select books in her classroom library as well as her display of stickers on her water bottle and car conveying pro-LGBTQ+ messages qualify as private speech under Kennedy v. Bremerton School Dist. (2022).

In Kennedy, the Supreme Court determined that a public high school football coach spoke as a private citizen on a matter of public concern when he prayed on the field following games. The coach received no compensation to offer prayer, prayed only after his coaching responsibilities ended and he was free to attend to personal matters while the team engaged in other activities, and did not direct his prayer at the team.

Ms. Smiley’s selection of books for her classroom library is easily distinguishable. Unlike the prayers Coach Kennedy led after football games as a private citizen, Ms. Smiley provides classroom books because of her role as a teacher. Even more, the books are expressly directed at, and provided for, her students in the classroom—the quintessential teaching environment. Her choice of classroom books is therefore not protected speech.

The court acknowledged that the law might apply to some speech that isn’t part of the teacher’s official duties, and that is thus in some measure protected by the First Amendment; but it concluded that this possibility didn’t make the law unconstitutionally overbroad:

To “provide[ ] breathing room for free expression,” a statute is facially invalid on overbreadth grounds if it “‘prohibits a substantial amount of protected speech’ relative to its ‘plainly legitimate sweep'” despite having some constitutional applications. Any unconstitutional application that a plaintiff hypothesizes, however, must be “realistic, not fanciful.” …

The stickers that Ms. Smiley displays on her car and water bottle require a different analysis. Some usages of stickers may qualify as “instruction” under the Indiana statute and as protected speech. But defining those circumstances need not detain us. Even assuming the statute prohibits some protected speech expressed through stickers on a car or water bottle, these instances are few relative to the plainly legitimate sweep of Section 20-30-17-2 and do not render it overbroad.

As a final point, Ms. Smiley also worries that “instruction” might cover “chance meetings” she has with students outside of school. This concern roots itself in a strained reading of Section 20-30-17-2, for “instruction” is housed within an article of the Indiana Code that exclusively regulates student-teacher interactions that occur on school grounds or in connection with school-sanctioned activities.

All of this leads us to conclude that Section 20-30-17-2 is not overbroad because it likely does not implicate a substantial amount of protected speech….

And the court also rejected Smiley’s vagueness claim:

[T]he Due Process Clause does not require states to legislate with surgical precision. Indeed, the Justices have underscored that it would be a “basic mistake” for a court to declare a statute void for “the mere fact that close cases can be envisioned.” Indeed, “[c]lose cases can be imagined under virtually any statute.” … “In determining whether a law is facially invalid, we must be careful not to … speculate about ‘hypothetical’ or ‘imaginary’ cases.” …

“A statute need not define every term to survive a vagueness challenge,” and we will sustain a facial challenge only where the “statute ‘simply has no core’ and lacks ‘any ascertainable standard for inclusion and exclusion.'” Put another way, the bar for facially invalidating a statute on vagueness grounds is very high, especially for civil statutes, which receive “greater tolerance … because the consequences of imprecision are qualitatively less severe” than a criminal penalty.

Here too, Ms. Smiley falls short. Not only does the term “instruction” have an ascertainable core of meaning, the handful of examples Ms. Smiley sees as more worrisome—such as her display of pro-LGBTQ+ stickers on her water bottle or the provision of certain books in her classroom library—arise only at the margins compared to the wide swath of situations clearly within the Indiana statute’s ambit.

The same is true of Indiana’s limitation of instruction on “human sexuality.” Ms. Smiley admits that “human sexuality” at least includes sex education and sexually transmitted diseases. And the plain meaning of the term, of course, extends further to cover human sexual anatomy, sexual reproduction, sexual conduct and intimacy, and sexual orientation.

It is also worth underscoring the difference between “instruction” on “human sexuality” and terms that have rendered statutes unconstitutionally vague in the past: “annoying” conduct, “common night walkers,” “habitual loafers,” and “elaboration” on the “general” nature of a criminal defendant’s defense strategy, for instance. The latter terms are subjective “terms of degree” with “no settled usage or tradition of interpretation in law.”

“Instruction” and “human sexuality” are different. Though each term encompasses more than one definition, words with broad meaning are not the same as vague words where, as here, each term has an ascertainable core of meaning. “Resolving edge questions” around that core “is a principal role of the courts.”

All for good reason. “Condemned to the use of words,” the Supreme Court has recognized that “we can never expect” states to legislate with “mathematical certainty.” And, if need be, a Pre-K–3 teacher can always turn to Indiana courts for guidance … or pursue an as-applied challenge in federal or state court to some particular application of the statute. In the final analysis, any vagueness at the statute’s periphery will inevitably “be reduced through a process of interpretation.” …

A statute can be unconstitutionally vague if its implementation would result in “arbitrary and discriminatory enforcement.” … But the core meaning we see in Section 20-30-17-2’s curriculum limitation makes arbitrary or discriminatory enforcement unlikely. Nor does Ms. Smiley cast any doubt on the State’s representation that licensing actions are rare and virtually non-existent for curriculum-related violations. In short, we do not “assume” that Indiana will enforce the statute improperly or “take no further steps to minimize the dangers of arbitrary enforcement.” If that proves inaccurate, Ms. Smiley (or another affected party), may bring an as-applied challenge….

Much of our reasoning today follows from the fact that Ms. Smiley brought facial and pre-enforcement challenges. Settled law counsels us to tread carefully when reviewing a state law in this posture. This is especially true in the context of primary education where states have historically exercised great discretion. Against this backdrop, Ms. Smiley has not shown that Section 20-30-17-2 is likely overbroad or vague ….

James A. Barta of the Indiana Attorney General’s office represents the state.