Friday, September 29, 2023
Courthouse News Service
Friday, September 29, 2023 | Back issues
Courthouse News Service Courthouse News Service

ACLU challenges Indiana sex education law in new lawsuit

The ACLU claims that the new law’s restrictions on the teaching of human sexuality fails to clearly define legal terms and is therefore unconstitutionally vague.

INDIANAPOLIS (CN) — House Enrolled Act 1608, signed into law by Indiana’s Republican Governor Eric Holcomb in May, contains a set of rules that bar classroom instruction of human sexuality prior to the fourth grade. The ACLU of Indiana filed a lawsuit Friday, claiming that the law is too broadly written.

The law establishes several carve-outs concerning the speech of teachers and school staff, including that they are specifically allowed to answer direct questions from students related to sexuality.

However, the ACLU claims in their lawsuit that the terms “human sexuality” and “instruction” are left so legally vague that this specific part of the law should be blocked and deemed unconstitutional.

“HEA 1608 is written so broadly that it would be next to impossible for teachers to determine what they can and cannot say to students,” said ACLU of Indiana legal director Ken Falk. “In addition, teachers have a First Amendment right to express themselves as private citizens outside of the classroom, including in the school’s hallways, playground, or before and after school, but the vagueness of this law would certainly have a chilling effect on those rights.” 

According to the lawsuit, teacher Kayla Smiley, the named plaintiff of the case, has been left unsure of what she can and cannot say to her students on topics of sexuality.

Violating HEA 1608 can result in the suspension or revocation of a teacher’s license, and Smiley says in the lawsuit that she is uncertain how to adjust her behavior to stay in accordance with the law.

The lawsuit posits a scenario where the word “gay” is used as a pejorative by a student and Smiley would like to instruct the student why that is wrong.

In that scenario, Smiley says, such a correction could be deemed instruction on human sexuality and be in violation of the new law.

The ACLU also claims that the term “instruction” could be interpreted to include any interaction with a student, even those that occur outside the classroom.

“During the period of time that she is in the school’s hallways, playground, or before and after school, she has the right to engage in private speech that is protected by the First Amendment. And she certainly has that right when she is outside of the school’s property. Nevertheless, the vague and uncertain meanings of 'instruction' and 'human sexuality' impose a chill on her ability to exercise her right to express herself as a private citizen on matters of interest to the public,” the group states in the suit.

Set to take effect on July 1, the new act also contains a provision, unchallenged by the Smiley and the ACLU in the lawsuit, that requires schools to inform parents after a student requests to use a different name or pronoun while at school.

The ACLU is also currently challenging another Indiana law passed this year that bans almost all forms of gender-affirming care for minors.  

“This session, legislators were determined to target LGBTQ community members and to censor conversation about the LGBTQ community in schools, HEA 1608 was no exception,” said Katie Blair, ACLU of Indiana advocacy director. “This bill, like others across the country, was modeled after Florida’s infamous Don’t Say Gay law. LGBTQ students exist at all ages and in all grade levels and their stories belong in Indiana schools.”

The office of Indiana Attorney General Todd Rokita did not immediately respond to a request for comment on the lawsuit.

Categories / Civil Rights, Education, Law

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.