The Volokh Conspiracy
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Court Refuses to Block Indiana Law That Bans "Instruction … on Human Sexuality" to Public K-to-3rd Students
From Smiley v. Jenner, decided by Judge James Patrick Hanlon (S.D. Ind.) on July 28, but just posted on Westlaw:
A new Indiana law prohibits public schools and their employees from providing instruction to students in prekindergarten through grade 3 on human sexuality. Kayla Smiley—a teacher who works for the Indianapolis Public Schools—alleges that the new law violates the United States Constitution because it (1) infringes on her right to free speech and (2) is so vague that she does not know what speech and actions may violate the law. She therefore asks the Court to enter a preliminary injunction preventing enforcement of the new law….
Under HEA 1608, "[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." But "[n]othing" in HEA 1608 "may be construed to prevent a school employee or a school staff member from responding to a question from a student regarding" human sexuality.
Kayla Smiley is a teacher who will be subject to HEA 1608 when she begins teaching an Indianapolis Public School class of first through third graders on July 31, 2023. She brought this action against the Indiana Secretary of Education, Dr. Katie Jenner, as head of the department overseeing teacher licensing. Ms. Smiley is concerned that she may unwittingly violate HEA 1608, thereby jeopardizing her teaching license, because she has "no idea what is encompassed within the term 'human sexuality,'" and does "not understand what is meant by the statute's term 'instruction.'" For example, she does not know if having books in her classroom library that "touch on LGBTQ themes" and "discuss and represent different family relationships and structures" violates HEA 1608. She contends that she would also "have to censor" herself by (1) not carrying her water bottle with its "message about tolerance of persons who are LGBTQ," (2) "remov[ing] the LGBTQ-supportive bumper stickers" that will be on her car, and (3) refraining from talking with students about "using the word 'gay' pejoratively.'"
The court rejected the request for a preliminary injunction, concluding that Smiley was unlikely to succeed on the merits:
"If a public employee speaks 'pursuant to [her] official duties,'" that speech is, for constitutional purposes, "the government's own speech." In that situation, the First Amendment does "not shield the individual from an employer's control and discipline." …
[Seventh Circuit precedents] show that speech within the scope of a teacher's job duties isn't limited to speech that presents "official curriculum." … "[T]he Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials."
This principle applies with equal force to speech outside of the classroom. As the Supreme Court has explained, the "'critical question … is whether the speech at issue is itself ordinarily within the scope of an employee's duties.'" That's especially important here, in the elementary-education context, where much of what an elementary teacher says to students during a typical school day is spontaneous …, in response to questions …, or otherwise outside of a formal lesson plan. Instead of being outside an elementary teacher's official duties, those things are central to the job. And the students are not any less of a captive audience when having an informal conversation with their teacher in a hallway or choosing which of the teacher's books to look at during unstructured time.
Indeed, Ms. Smiley wants to use classroom-library books, water bottle messages, and car bumper stickers to "create teachable moments" for her students. She "carries her water bottle to instruct those who observe it on tolerance of persons who are LGBTQ." She puts bumper stickers on her car to similarly "express … tolerance." And she 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. In short, according to Ms. Smiley, "everything sparks conversation" and "it is always used as a teachable moment." 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. Garcetti v. Ceballos (2006) ("Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.")….
The Supreme Court's Kennedy opinion, which Ms. Smiley relies on, does not support Ms. Smiley's position. There, the Court held that a high school football coach spoke as a private citizen when he prayed on the field after a few games. That was because the prayers were not in the scope of his coaching duties, were at a time when coaches were "free to engage in all manner of private speech," and were "when students were engaged in other activities." As the Court observed, "what matters is whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach. And taken together, both the substance of Mr. Kennedy's speech and the circumstances surrounding it point to the conclusion that he did not."
Here, by contrast, most if not all of the expression that Ms. Smiley fears could violate HEA 1608 is aimed at "teachable moment[s]" to impart specific lessons to elementary students. There's therefore no indication that Ms. Smiley would be "stepp[ing] outside" her role as a teacher "to speak as a citizen." On the contrary, the situations that Ms. Smiley describes seem to be squarely within her job as an elementary school teacher. Garcetti ("When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee."). Indeed, Ms. Smiley cites no authority establishing that an elementary school teacher has the right to speak in her capacity as a private citizen when expressing an educational message to her students.
At the least, even if some of the expression that Ms. Smiley is worried about—perhaps the LGBTQ-supportive bumper stickers on her car—is protected by the First Amendment, Ms. Smiley is nonetheless unlikely to be able to show that HEA 1608 is unconstitutional on its face…. "Facial invalidation for technical overbreadth is strong medicine, and is inappropriately employed unless the statute substantially criminalizes or suppresses otherwise protected speech vis-à-vis its plainly legitimate sweep." … In short, Ms. Smiley asks for an injunction that would "throw out too much of the good based on a speculative shot at the bad." "That is not the stuff of overbreadth—as-applied challenges can take it from here." { Because Ms. Smiley brings only a facial challenge, the Court does not address her likelihood of success on any as-applied challenge.}
To be clear, the Court does not suggest that Ms. Smiley forfeited her First Amendment rights when she became a public school teacher…. But here, HEA 1608's prohibition of "instruction … on human sexuality" affects only expression to elementary students—rather than to the public—which the First Amendment does not protect when it's "against the instructions of elected officials." …
[As to vagueness,] "[A] statute is only unconstitutionally vague if it fails to define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and it fails to establish standards to permit enforcement in a nonarbitrary, nondiscriminatory manner." In short, due process "does not demand perfect clarity and precise guidance."
Because Ms. Smiley has not shown some likelihood of success on her First Amendment claim, her facial vagueness challenge is "limited" and "disfavored." HEA 1608 is therefore unconstitutional on its face only if it "has no discernable core" of understandable meaning and "lacks any ascertainable standard."
Here, "instruction … on human sexuality" is not so vague that it lacks a core of understandable meaning. Those terms are no vaguer than "acquires," "receives," or "transfers," all of which the Seventh Circuit has held to be understandable. And they are certainly more definite than "reasonable," which also "has enough of a core to allow its use in situations where rights to speak are at issue." Like each of those terms, "instruction" and "human sexuality" are terms that people "use and understand in normal life." So Ms. Smiley has not been given "no guidepost" from which to "divine what sort of conduct is prohibited." …
Ms. Smiley worries that her classroom-library books, water bottle messages, car bumper stickers, and passing conversations with students may unwittingly violate HEA 1608. But even if there are questions about whether these actions and expressions come within HEA 1608's scope, they do not undermine or remove HEA 1608's understandable core…. "The enforcement of the Statute will inevitably present many uncertainties at the margins, but the resolution of those 'edge questions' arising from the enforcement of a state law is a principal role of the state's courts." …
Nor does Ms. Smiley argue that she could not bring an as-applied challenge if the Department of Education were to initiate proceedings to suspend or revoke her teaching license…. "When a statute is accompanied by a system that can flesh out details, the due process clause permits those details to be left to that system." … That is 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."
My quick reaction: As I've written before, courts have generally held that teachers have no First Amendment right to choose what and how to teach in public K-12 schools. (Cases tend otherwise as to public colleges and universities, but those decisions stress the special treatment that courts give to higher education.) The government may, if it wants to, give considerable flexibility to teachers. But it can also insist that decisions about teaching be made not by such line public employees but instead by higher-level officials—principals, school boards, legislatures, or others, as each state decides.
This might not extend to all interactions between teachers and students, especially outside class; sometimes teachers, even in lower grades, may be speaking just on their own behalf and not on behalf of the school. But a law that's limited to "instruction" does strike me as constitutional. And the void-for-vagueness doctrine is unlikely to change things; when the government tells its employees what to say as part of their jobs, it may permissibly use rules—e.g., "don't be rude," "be professional," "answer questions well"—that would be too vague for it to impose on the public at large, on pain of criminal or civil liability.
Melinda Rebecca Holmes and James A. Barta represent the state. Smiley has appealed.
