Brad Boswell: Smiley, Kluge and their impact on teacher speech litigation

Indiana public schools have been handed a doctrinal puzzle by two recent 7th Circuit decisions. In Smiley v. Jenner (2026), the court affirmed the state’s broad constitutional authority to prescribe and restrict what public school teachers say in class. Yet, in Kluge v. Brownsburg Community School Corp. (2025), the court held that a school district’s authority over classroom operations does not automatically defeat a teacher’s statutory right to a religious accommodation under Title VII. When read together, the cases highlight a gap: The government may control official speech, but it may not refuse religious exceptions to that speech without proving substantial hardship.

Smiley arose from a challenge to Indiana’s HEA 1608 (2023), which prohibits public schools and teachers from providing “instruction on human sexuality” in K-3 classrooms. A teacher challenged the statute on First Amendment overbreadth and 14th Amendment vagueness grounds. The 7th Circuit affirmed denial of a preliminary injunction, concluding the teacher failed to show a
likelihood of success on the merits.

The court treated primary-school classroom instruction as speech pursuant to official duties rather than private expression. Public school teachers in K-8 speak as agents of the school within the classroom, and the Constitution does not entitle them to present personal views to a captive audience over the objections of the school. The court left some other questions open, such as casual remarks and the actual boundaries of “instruction,” but Smiley’s central holding is clear: The state has broad authority to dictate what teachers may and may not teach.

Kluge presented a different legal question. Brownsburg School Corp. required teachers to use student names and pronouns as recorded in the school’s database. Kluge objected on religious grounds and was initially provided an accommodation by the school to address children based on their last name only. After complaints, the school rescinded the accommodation and demanded Kluge comply or face termination. He resigned and sued the school under Title VII.

The 7th Circuit reversed summary judgment for the school after finding genuine disputes on undue hardship. Kluge and the school corporation settled out of court before the case could be tried on remand. But the 7th Circuit had emphasized that Title VII accommodation claims differ from ordinary disparate-treatment cases. In these instances, a good faith belief that an accommodation causes harm is not enough and an employer must prove that granting the accommodation would impose a burden “substantial in the overall context of the business,” under the Supreme Court’s 2023 decision in Groff v. DeJoy. Generalized complaints and subjective offense do not satisfy that burden. The employer must directly connect disruption to the specific accommodation and show that it genuinely explored alternatives.

The paradox emerges when the two holdings are placed side by side. After Smiley, the state can tell teachers: “You must teach X,” or “You may not teach X.” Yet, under Kluge (and Groff), the teacher can respond: “My religion prohibits me from teaching X,” or “My religion requires me to teach X,” and the employer must accommodate the objection or successfully prove substantial hardship. These two cases operate on parallel tracks. Nothing in Smiley removes Title VII protections for teachers, and nothing in Kluge gives teachers a veto over curriculum set by the school.

This dynamic could become increasingly important as the classroom draws more political attention from policymakers. What happens when the next state policy expands beyond sexual education instruction and includes parameters to curricula on race, discrimination, social justice or controversial health or science topics? In each scenario, the state’s constitutional curricular authority to direct teacher speech in the classroom could potentially collide with the federal statutory obligation to accommodate a teacher’s sincerely held religious beliefs absent proof of substantial hardship.

For the Legislature, the lesson is to draft curricular mandates with these accommodations in mind. A statute that prescribes teacher speech without any accommodation mechanism invites Title VII challenges. Creating an accommodation process does not weaken curricular authority; it may even showcase the state has considered less restrictive means as demanded by Groff.

For schools, the takeaway is documentation and process. Under Kluge, a school denying an accommodation must identify specific, concrete hardship and show it explored alternatives in good faith. Generalized concerns about complaints or institutional consistency will not suffice.

For teachers, the guidance is equally concrete: Frame claims as accommodations requests, not broad assertions of curricular autonomy. Teachers claiming the right to override school lesson plans are at a clear disadvantage under Smiley. Whereas teachers requesting accommodation for a religious exception under Title VII are in a far stronger position under Kluge and Groff.

For lawyers, the Smiley–Kluge intersection is a reminder that education law, employment law, and constitutional litigation are ever converging. This representation requires detailed analyses on government speech and relevant statutes, and advising a school board or a teacher requires wide depth of knowledge.

The 7th Circuit has not created an irreconcilable conflict, but it has identified a gap between legitimate legal interests. The state’s power to control official classroom speech is real and constitutionally grounded. Yet a teacher’s right to religious accommodation is equally real and federally protected. For Indiana schools, the challenge is to operate within both frameworks simultaneously. That requires thoughtful drafting and a willingness to treat reasonable accommodations as a legal obligation.•

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Boswell is an attorney at the Indianapolis office of Faegre Drinker Biddle & Reath.