From Smiley v. Jenner, decided yesterday by Seventh Circuit Judge Michael Scudder, joined by Judges Candace Jackson-Akiwumi and Doris Pryor:
Indiana law establishes curriculum requirements for certain schools within the state. In 2023, the state General Assembly passed Indiana House Enrolled Act 1608 [codified at Section 20-30-17-2], which added a new curriculum limitation:
A school, an employee or staff member of a school, or a third party vendor used by a school to provide instruction may not provide any instruction to a student in prekindergarten through grade 3 on human sexuality.
By its terms, HEA 1608 allows teachers to "respond[ ] to a question from a student" on human sexuality. It also permits teachers to instruct on academic standards "developed by the department [of education]" on enumerated subjects (such as science and math) and to provide required instruction on child abuse and child sexual abuse notwithstanding the restriction imposed by the curriculum limitation. But the General Assembly otherwise left the terms "instruction" and "human sexuality" undefined….
Plaintiff, who teaches "grades 1–3" sued, alleging that the law would "capture, or at least chill, protected speech that she primarily wishes to engage in while serving as an elementary school teacher," "such as the choice to include books in her classroom library that touch on topics of parenting, and gender and sexual identity, to place stickers on her water bottle and car communicating pro-LGBTQ+ messages, and to correct students when they use pejorative terms related to sexual identity." She also "worries that, with no discernable boundaries as to what constitutes 'instruction' or 'human sexuality,' she may unintentionally run afoul of the statute and risk losing her teaching license."
