Seventh Circuit Upholds Indiana Ban on Human Sexuality Instruction for Pre-K to Grade 3 Students

Seventh Circuit Affirms Indiana’s Curriculum Restriction for Young Students

The Seventh Circuit Court of Appeals, in a decision issued on [INSERT DATE], upheld Indiana’s ban on teaching human sexuality to students in prekindergarten through third grade. The ruling, authored by Judge Michael Scudder and joined by Judges Candace Jackson-Akiwumi and Doris Pryor, rejected constitutional challenges to the law, finding it neither overly broad nor unconstitutionally vague.

Background of Indiana House Enrolled Act 1608

In 2023, the Indiana General Assembly passed Indiana House Enrolled Act 1608 (HEA 1608), which was codified as Section 20-30-17-2 of the Indiana Code. The law imposes a curriculum limitation: schools, teachers, staff, or third-party vendors may not provide any instruction on human sexuality to students in pre-K through grade 3.

The law includes specific exceptions:

• Teachers may respond to student questions about human sexuality.
• Instruction on academic standards—such as science or math—developed by the Indiana Department of Education remains permitted.
• Required instruction on child abuse and child sexual abuse is not restricted.

Notably, the terms “instruction” and “human sexuality” are not defined in the statute.

Plaintiff’s Legal Challenge

The plaintiff, an elementary school teacher who teaches grades 1–3, filed a lawsuit alleging that HEA 1608 would chill her protected speech. She argued that the law could restrict her ability to:

• Include books in her classroom library that address parenting, gender identity, or sexual identity.
• Display pro-LGBTQ+ messages on personal items like water bottles or cars.
• Correct students using pejorative terms related to sexual identity.

She also expressed concern that the lack of clear definitions for “instruction” and “human sexuality” could lead to unintentional violations and potential loss of her teaching license.

Court Rejects Overbreadth and Vagueness Challenges

The court analyzed the meaning of “instruction” within the context of Indiana’s curriculum laws. It concluded that the term refers to the action of teaching or imparting knowledge for pedagogical purposes. The law applies to in-classroom instruction, which the court determined does not enjoy First Amendment protection when delivered as part of a teacher’s official duties.

“[I]n-classroom instruction [by K-12 teachers] does not enjoy First Amendment protection. … [I]n-classroom instruction necessarily constitutes 'statements pursuant to [the teacher's] official duties.' This is true whether a teacher delivers a formal lesson pursuant to a curriculum mandate or gives a spontaneous lecture.”

The court also addressed the plaintiff’s concern about correcting students’ use of pejorative terms, stating that such actions fall within her official duties and are not protected speech under the First Amendment.

Scope of the Law Confirmed

The court concluded that the law is not substantially overbroad because it is narrowly tailored to apply only to in-classroom instruction for students in pre-K through third grade. The ruling emphasized that the law does not prohibit discussions outside the classroom or responses to student-initiated questions.

The decision underscores Indiana’s authority to regulate curriculum content for young students, particularly on topics deemed sensitive or inappropriate for early education settings.