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The 7th Circuit Court of Appeals heard oral arguments Friday in a case involving an Indianapolis teacher who is seeking preliminary injunction against a new Indiana law that prohibits instruction on human sexuality in grades K-3.
Indiana Attorney General Todd Rokita issued a news release which included an attached response brief his office filed in the federal court for the case.
The state filed the brief in Kayla Smiley v. Katie Jenner, 23-2543.
Smiley has alleged the new law, House Enrolled Act 1608, violates her right to free speech and is so vague that she does not know what speech and actions may violate the law.
In his response brief, Rokita’s office argued that Indiana, like many other states, sets curriculum requirements that public school teachers must follow.
“Longstanding requirements include prohibitions on providing ‘instruction on human sexuality’ without parental consent and requirements to teach abstinence throughout any ‘instruction on human sexuality,” the brief states.
The brief further argued that through HEA 1608, Indiana added one more requirement to its rules concerning “instruction on human sexuality,” prohibiting public-school teachers from providing that instruction to students in prekindergarten through third grade.
In July, Judge James P. Hanlon of the U.S. District Court for the Southern District of Indiana issued an order denying the preliminary injunction motion filed by the American Civil Liberties Union of Indiana on behalf of Smiley.
Smiley filed an appeal with the 7th Circuit in August to overturn the federal judge’s denial of her motion for a preliminary injunction against the Indiana law.
In its memorandum in support of a preliminary injunction to prevent enforcement of the law pending trial, the ACLU argued the law’s language presents no standards or guidance for Smiley, or anyone subject to HEA 1608, that they could use to determine if they violated the law, or if a teacher had engaged in forbidden instruction on human sexuality.
In a news release, Rokita asserted that teachers in public schools don’t have a First Amendment right to teach whatever they want.
He stated that “this type of class no longer focuses on biology – it’s now based on ideology. This is why parents should be the ones to help guide their children through this difficult stage.”
“Human sexuality being taught to students by their teachers is questionable at any age,” Rokita said in the release. “The fact that this is taught to children who are still learning how to spell and how to do basic math is reprehensible. That simple reality should be obvious to anyone. This is a good law that represents Hoosier common sense and respects parents’ roles in raising their children.”
Rokita added that the law contains the same language used in other Indiana laws that have been enforced for years without challenge.
Indiana Lawyer reached out to the ACLU of Indiana for comment.
In a reply brief filed by the ACLU with the 7th Circuit, Smiley argued that HEA 1608 defines neither “instruction” nor “human sexuality,” and due to the vagueness of these terms, Smiley is forced to engage in self-censorship of protected speech in order to avoid placing her licensure in jeopardy.
“Although the State erroneously disputes this point, the statute is a form of prior restraint in that it imposes a prohibition on speech before it occurs. This is the most disfavored form of speech regulation, and an additional weight is therefore added to the balance in favor of Ms. Smiley’s speech,” the ACLU brief states.
The brief argues the law constitutes a violation of Smiley’s First Amendment rights and asks for the case to be remanded to the district court with instruction that a preliminary injunction should be issued.
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