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A federal judge has declined to issue an injunction against a new Indiana law that prohibits instruction on human sexuality in grades K-3.
Judge James P. Hanlon of the U.S. District Court for the Southern District of Indiana issued the order Friday denying the motion filed by the American Civil Liberties Union of Indiana on behalf of Indianapolis teacher Kayla Smiley.
The ruling came one business day before students at Indianapolis Public Schools, where Smiley teaches, returned to school Monday.
In his ruling, Hanlon said the motion was denied because Smiley had not shown some likelihood of succeeding on the merits of her claims.
Smiley alleged the new law, House Enrolled Act 1608, violated her right to free speech and is so vague that she does not know what speech and actions may violate the law.
Stevie Pactor, an ACLU of Indiana staff attorney, said Tuesday the organization was disappointed in Hanlon’s ruling.
Pactor said the ACLU understood the legal arguments on both sides and called Hanlon’s order thoughtful and well-reasoned.
“We’re conferring internally and considering our options,” Pactor said, adding that the ACLU could appeal the order or move forward with discovery and would make a decision soon.
Indiana Lawyer also reached out to Indiana Attorney General Todd Rokita’s office for a response.
“We successfully defended all Hoosier parents who agree that teacher unions and school board bureaucrats should not influence our youngest children with their slanted views on gender pronouns and sexuality. This federal ruling helps ensure that parents are kept in charge and informed of their child’s education. We’re hopeful this brings comfort and clarity to parents across the state as their kids return to school to learn about science, reading and math in their classrooms,” an office spokesperson said in an email.
Smiley had argued that HEA 1608 is unconstitutionally vague under the 14th Amendment because the terms “human sexuality” and “instruction” do not give fair notice of “what she may say and where she may say it.” She also argued it violated the First Amendment by unconstitutionally restricting her speech.
In the order issued Friday, Hanlon wrote that Smiley faced a heavy burden to show that HEA 1608 is unconstitutional on its face, rather than as-applied to specific speech.
He noted that Smiley wants to use classroom library books, water bottle messages and car bumper stickers to “create teachable moments” for her students and has chosen the books in her library to ensure that students have “a whole, full-circle world view where they could be open-minded of other cultures” and “learn about the history of some … hot topic” issues.
“Such interactions, even when spontaneous and not part of official curriculum, are within the scope of Ms. Smiley’s duties and responsibilities as an elementary school teacher and therefore not protected by the First Amendment,” Hanlon wrote, adding that Smiley was therefore unlikely to be able to show that the First Amendment protects the speech that she is concerned may subject her to discipline.
As for the 14th Amendment, Indiana Secretary of Education Katie Jenner, the named defendant, argued HEA 1608 is not too vague because it has “a substantial, understandable core.”
Hanlon added in a footnote that because Smiley had not shown some likelihood of success on her First Amendment claim, her facial vagueness challenge is “limited” and “disfavored,” with the judge citing Planned Parenthood of Ind. & Ky. v. Marion Cnty. Prosecutor, 7 F.4th 594 (7th Cir. 2021).
According to Hanlon, Smiley admitted that HEA 1608 legitimately applies to at least formal teaching on sex education or sexually transmitted diseases, but she argued that those things don’t qualify as a “core” to the statute because “there is no official course on ‘human sexuality’ taught to students in kindergarten through third grade.”
“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.
Further, Hanlon noted Smiley did not argue that she could not bring an as-applied challenge if the Indiana Department of Education were to initiate proceedings to suspend or revoke her teaching license. He said that was the appropriate way to raise constitutional concerns about the periphery of a statute’s application.
“So while ‘an as-applied challenge to [HEA 1608] may have a different outcome, this challenge to the Statute fails because it is a facial challenge to a statute with a discernable core,’” Hanlon wrote, adding that Smiley had also not shown some likelihood of success on her due process claim.
The case is Kayla Smiley v. Dr. Katie Jenner, 1:23-cv-1001.
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