Davis
Elementary school teacher Kayla Smiley will begin a new academic year with Indianapolis Public Schools on July 31. And she’ll do it in accordance with a new state law that supporters say shields too-young children from sex education but that critics say could ban discussions about LGBTQ+ people in schools.
That’s despite her efforts to prevent that from happening: Smiley is a plaintiff in a legal challenge to the law, known as House Enrolled Act 1608, which impacts elementary school students from kindergarten to third grade.
On Friday, Judge James Patrick Hanlon of the U.S. District Court for the Southern District of Indiana denied her motion for a preliminary injunction to pause enforcement of the law. It went into effect on July 1, but children were largely out of school at that time.
The American Civil Liberties Union (ACLU) of Indiana sued Indiana Department of Education Secretary Katie Jenner on Smiley’s behalf in June. She argued that the law would violate her First Amendment rights by taking away her “ability to speak as a citizen on matters of public interest and to speak away from work on matters unrelated to her employment and addressed to a public audience.”
Smiley additionally contended that the law violated the 14th Amendment because it’s “impossibly vague,” given that neither “instruction” nor “human sexuality” is defined. That, she said, would make it difficult to know what does and doesn’t violate the law. What about informal forms of expression, like the books on her classroom shelves, stickers on her water bottle, or decals on her car?
Classroom speech unprotected
Hanlon wrote that when government employees — like public school teachers — express themselves while on the job, that speech isn’t protected by the First Amendment.
This also means speech outside official curriculum, and even outside the classroom, as long as it’s within the scope of an employee’s duties.
“That’s especially important here, in the elementary-education context, where much of what an elementary teacher says to students during a typical school day is spontaneous …, in response to questions …, or otherwise outside of a formal lesson plan,” Hanlon wrote. “Instead of being outside an elementary teacher’s official duties, those things are central to the job.”
In Hanlon’s own complaint, she described using informal forms of expression to “create teachable moments” — which Hanlon quoted to make his argument.
He cautioned that people don’t “forfeit” free speech rights when they become teachers — but their speech is protected outside of their duties, like writing to a local newspaper.
“But here, HEA 1608’s prohibition of ‘instruction … on human sexuality’ affects only expression to elementary students — rather than to the public — which the First Amendment does not protect when it’s ‘against the instructions of elected officials.’” Hanlon concluded.
He purposefully focused on First Amendment precedents and avoided deciding the law’s scope, writing, “‘[a] federal district judge cannot definitively interpret’ HEA 1608 as ‘the state judiciary can.’”
High standards for vagueness
Hanlon said Smiley’s argument that the law is too vague was “disfavored” because her challenge is “facial” — meaning that she asserts the law is unconstitutional at all times in all situations, or “on its face.”
“HEA 1608 is therefore unconstitutional on its face only if it ‘has no discernable core’ of understandable meaning and ‘lacks any ascertainable standard,’ Hanlon wrote.
In contrast, “as-applied” challenges stem from specific situations, and attest that a law is unconstitutional in specific contexts. They more often lead to a narrowing on the law’s scope.
But he decided, the terms “instruction” and “human sexuality” don’t meet that vagueness threshold, and that there are clear-cut situations in which the law would legitimately apply.
The introduction of sex education usually starts in the fourth grade, according to state standards.
“But that doesn’t remove the possibility that a teacher could insert human sexuality into a lesson plan on their own, and it does not make the prohibition less understandable,” Hanlon wrote.
In deciding to reject the motion for a preliminary injunction, he wrote that Smiley had “not shown some likelihood” that she’d succeed on either claim.
The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.
