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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA federal appeals court handed down a significant victory for school choice on Tuesday, denying an Indianapolis teacher’s request to halt enforcement of the state’s prohibition on human sexuality instruction for young elementary schoolers.
Seventh Circuit Court of Appeals Judges Michael Scudder Jr., Candace Jackson-Akiwumi and Doris Pryor handed down the decision on Tuesday, ruling that the plaintiff, an Indianapolis Public Schools elementary teacher, did not demonstrate a likelihood of success on her First Amendment protected speech claim or her 14th Amendment vagueness claim.
“We are disappointed by yesterday’s ruling,” said Kenzie Conrad, senior communications specialist for the American Civil Liberties Union of Indiana, which is representing the teacher. “As of now, we are currently evaluating our options and do not have anything further to share at this time.”
Indiana Attorney General Todd Rokita called the decision a “big win” for Hoosier families on the social media platform X on Tuesday.
“Our office will continue to defend parents’ fundamental right to direct their child’s upbringing and education, while keeping classrooms focused on what matters most: reading, math, science, and real learning,” Rokita said.
In June 2023, Kayla Smiley, who was set to begin teaching first through third grades in the Indianapolis Public School system the upcoming school year, sued Indiana Secretary of Education Katie Jenner over the implementation of House Enrolled Act 1608, which prohibits public schools and their teachers from providing “any instruction” on “human sexuality” to students in pre-kindergarten through third grade.
HEA 1608 does allow teachers to respond to students’ questions on human sexuality and to provide required instruction on child abuse and child sexual abuse. However, Scudder wrote, the Legislature otherwise left the terms “instruction” and “human sexuality” undefined.
Although the law didn’t go into effect for another month, Smiley challenged the measure, arguing that the law violated the First and 14th Amendments because it was too broad and vague.
Smiley requested that the U.S. District Court for the Southern District of Indiana declare the law unconstitutional and enjoin the state from enforcing it. According to court documents, Smiley worried that, with no discernible boundaries as to what “instruction” or “human sexuality” entails, she may unintentionally break the statute and risk losing her teaching license.
Smiley also argued that the law could affect her protected speech, including her choice to include certain books in her classroom library that touch on topics of parenting and gender and sexual identity, to place pro-LGBTQ+ stickers on her water bottle, and to correct students when they use derogatory words related to sexual identity.
District Court Judge James Hanlon denied the injunction request in July 2023, saying Smiley had not shown some likelihood of success on her First and 14th Amendment claims. Smiley appealed the decision shortly thereafter.
The circuit court judges agreed with Hanlon’s conclusion.
Circuit Court Judge Scudder wrote in Tuesday’s order that Indiana Code § 20-30-17-2, the code section that HEA 1608 created, is not overly broad because “it likely does not implicate a substantial amount of protected speech.”
Scudder also concluded that, even though the law is silent on enforcement, the core meaning of the statute’s curriculum limitation “makes arbitrary or discriminatory enforcement unlikely.”
“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,'” Scudder wrote.
Much of the court’s reasoning had to fall in line with Smiley’s facial and pre-enforcement challenges, since the law had not gone into effect by the time she first filed suit.
“Settled law counsels us to tread carefully when reviewing a state law in this posture,” Scudder wrote. “This is especially true in the context of primary education where states have historically exercised great discretion.”
The case is Kayla Smiley v. Katie Jenner (1:23-cv-01001-JPH-MKK)
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