Date: Apr 23, 2026

Facial Challenges to Pre‑K–3 Curriculum Limits Fail Where “Instruction on Human Sexuality” Has a Discernable Core and Largely Regulates Unprotected Official‑Duties Speech

Introduction

Kayla Smiley v. Katie Jenner is a pre-enforcement constitutional challenge to Indiana House Enrolled Act 1608, codified at Ind. Code § 20-30-17-2, which provides that a school, school employee, or vendor “may not provide any instruction to a student in prekindergarten through grade 3 on human sexuality.” Kayla Smiley, a teacher scheduled to teach grades 1–3, sued under 42 U.S.C. § 1983 seeking declaratory and injunctive relief, alleging the statute is (1) facially overbroad under the First Amendment and (2) facially vague under the Fourteenth Amendment’s Due Process Clause.

Smiley argued that the undefined terms “instruction” and “human sexuality” chill constitutionally protected expression, including: selecting classroom library books touching on parenting, gender, and sexual identity; displaying pro‑LGBTQ+ stickers on personal items; and correcting students’ use of pejorative terms. She also contended vagueness creates risk of arbitrary enforcement through teacher-licensing sanctions.

The district court denied a preliminary injunction. The Seventh Circuit affirmed, holding Smiley failed to show a likelihood of success on the merits—an essential prerequisite for preliminary injunctive relief.

Summary of the Opinion

The Seventh Circuit (Scudder, J.) affirmed the denial of preliminary injunction, concluding:

Smiley’s facial overbreadth claim likely fails because the statute’s “plainly legitimate sweep” primarily covers teacher official-duties speech (especially classroom instruction), which is not protected by the First Amendment for primary/secondary teachers under Seventh Circuit precedent.
Smiley’s facial vagueness claim likely fails because “instruction” and “human sexuality” have an ascertainable core of meaning; uncertainty at the margins is insufficient to invalidate the statute facially—particularly in a pre-enforcement posture.
Concerns about arbitrary enforcement were deemed speculative given the statute’s core meaning, the existence of administrative process for licensing actions, and the court’s unwillingness to presume improper enforcement in the absence of evidence.

Analysis

Precedents Cited

1) Preliminary injunction standards and appellate review

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008): Set the framework that a preliminary injunction is an “extraordinary remedy” requiring, among other factors, a showing of likely success on the merits. The panel uses Winter to emphasize Smiley’s “heavy burden.”
Richwine v. Matuszak, 148 F.4th 942 (7th Cir. 2025) and Speech First, Inc. v. Killeen, 968 F.3d 628 (7th Cir. 2020): Supplied the standards of review (legal conclusions de novo, factual findings clear error, balancing abuse of discretion) and reinforced deference to the district court absent error—important because Smiley sought interlocutory relief.

2) Facial challenges, pre-enforcement posture, and judicial restraint

Moody v. NetChoice, LLC, 603 U.S. 707 (2024): The opinion quotes Moody’s warning that choosing a facial challenge “comes at a cost,” highlighting the Court’s reluctance to resolve broad constitutional questions on speculative applications.
Parents Protecting Our Child., UA v. Eau Claire Area Sch. Dist., 95 F.4th 501 (7th Cir. 2024): Cited for the proposition that “sweeping pre-enforcement facial invalidation of law is highly disfavored,” especially where federalism and local policy concerns are weighty—framing education policy as an area where courts proceed cautiously.
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008): Used (via Moody and directly) to underscore that facial invalidation risks “short circuit[ing] the democratic process” and that courts should avoid speculation about “hypothetical” or “imaginary” cases.

3) Overbreadth doctrine (First Amendment facial invalidation)

United States v. Salerno, 481 U.S. 739 (1987): Provided the baseline rule for facial challenges (“no set of circumstances” under which the law is valid), which overbreadth partially relaxes in speech cases.
United States v. Hansen, 599 U.S. 762 (2023) and United States v. Williams, 553 U.S. 285 (2008): The panel relies on these cases for the modern formulation: a statute is overbroad only if it prohibits a “substantial amount of protected speech” relative to its “plainly legitimate sweep,” and any hypothesized unconstitutional applications must be “realistic, not fanciful.”
Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984): Bolstered the idea that “substantial overbreadth” requires a “realistic danger” to First Amendment protections, not merely some questionable applications.
Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489 (1982): Provided two crucial moves in the opinion: (i) the court’s “first task” is whether the law reaches substantial protected conduct; (ii) vagueness and overbreadth are interrelated, because ambiguity can chill speech.
Baggett v. Bullitt, 377 U.S. 360 (1964): Quoted through Flipside for the “steer far wider” chilling effect of ambiguous laws—setting up Smiley’s theory, which the panel ultimately rejects due to the statute’s discernable core and limited reach into protected speech.

4) Vagueness doctrine (Due Process; speech-sensitive clarity)

Grayned v. City of Rockford, 408 U.S. 104 (1972): Anchored the two prongs of vagueness: lack of fair notice and risk of arbitrary/discriminatory enforcement.
Wis. Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) and Smith v. Goguen, 415 U.S. 566 (1974): Cited for heightened clarity demands when speech is regulated, while recognizing “perfect clarity” is not required.
Brown v. Kemp, 86 F.4th 745 (7th Cir. 2023): Reinforced Seventh Circuit practice of applying heightened vagueness scrutiny where First Amendment activity is implicated.
United States v. Cook, 970 F.3d 866 (7th Cir. 2020) and United States v. Jones, 689 F.3d 696 (7th Cir. 2012): Supplied the “no core” / “no ascertainable standard for inclusion and exclusion” benchmark; the panel finds “instruction” and “human sexuality” do have a core.
Trustees of Ind. Univ. v. Curry, 918 F.3d 537 (7th Cir. 2019) and Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010): Used to stress that “uncertainty at the margins” does not doom a statute; “edge questions” are often resolved through interpretation and as-applied challenges, and federal courts should be respectful of state courts’ role in narrowing constructions.
Planned Parenthood of Ind. & Ky., Inc. v. Marion County Prosecutor, 7 F.4th 594 (7th Cir. 2021) and Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489 (1982): Supported the proposition that civil statutes receive “greater tolerance” than criminal laws and that courts should not presume states will enforce statutes arbitrarily without evidence.

5) Public-employee/teacher speech and “official duties” limits

Brown v. Chi. Bd. of Educ., 824 F.3d 713 (7th Cir. 2016) and Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477 (7th Cir. 2007): These are the backbone of the court’s conclusion that in-classroom instruction by K–12 teachers is speech pursuant to official duties and therefore receives no First Amendment protection against employer/curriculum control—whether the lesson is planned or impromptu.
Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022): Smiley invoked Kennedy to characterize certain conduct (e.g., stickers) as private speech. The panel treats Kennedy as a fact-specific case where the coach was off-duty, not directing prayer at students, and not being paid to pray—then distinguishes classroom library choices as quintessential teacher-role conduct.
Hedgepeth v. Britton, 152 F.4th 789 (7th Cir. 2025): Cited for the balancing principle that even private employee speech can lose protection where governmental efficiency/workplace interests outweigh the employee’s interest.
Darlingh v. Maddaleni, 142 F.4th 558 (7th Cir. 2025): Quoted to highlight the heightened governmental interest in the elementary-school educational environment, given educators’ special trust and authority.

6) Illustrations of unconstitutional vagueness in other contexts

Coates v. City of Cincinnati, 402 U.S. 611 (1971), Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), and Gentile v. State Bar of Nev., 501 U.S. 1030 (1991): The panel contrasts “instruction” and “human sexuality” with historically vague terms such as “annoying,” vagrancy categories, and amorphous requirements about “elaboration” on a defense—examples of subjective “terms of degree” lacking settled meaning.
Nat'l Endowment for the Arts v. Finley, 524 U.S. 569 (1998): Mentioned (via Scalia’s concurrence) to illustrate how some terms could be vague in regulatory contexts, but the panel uses it mainly to underscore that the challenged terms here are not similarly indeterminate.

7) State discretion in education policy

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973): Cited to situate the dispute within states’ historically broad discretion over primary education, reinforcing the court’s caution in a pre-enforcement facial review of a state curriculum measure.

Legal Reasoning

Start with posture and remedy: Because Smiley sought a preliminary injunction, she had to show a likelihood of success on the merits under Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). Because she brought a facial, pre-enforcement challenge, the court applied the Supreme Court’s and Seventh Circuit’s repeated cautions against speculative, sweeping invalidation (e.g., Moody v. NetChoice, LLC, 603 U.S. 707 (2024)).
Define the statute’s core coverage (“instruction”): The court interpreted “instruction” in context—Article 30 “Curriculum”— as teacher/staff efforts to impart knowledge for pedagogical purposes, with an undisputed “core” covering Pre‑K–3 classroom lessons.
Overbreadth fails because most covered speech is unprotected: Relying on Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477 (7th Cir. 2007) and Brown v. Chi. Bd. of Educ., 824 F.3d 713 (7th Cir. 2016), the court treated classroom instruction—formal or spontaneous—as speech “pursuant to official duties,” and thus outside First Amendment protection in this setting. Even interactions outside the classroom (hallways/playground) often remain within official duties (e.g., maintaining order), limiting the amount of protected speech reached.
Edge cases do not create “substantial” overbreadth: The court assumed (without deciding) that stickers on a personal water bottle or car could sometimes be protected speech and could sometimes be treated as “instruction,” but held these marginal scenarios are not substantial relative to the statute’s legitimate scope. The opinion also rejected as strained the notion that the law covers teacher-student interactions outside school, given the statute’s placement in the curriculum code.
Vagueness fails because terms have an ascertainable core: Applying Grayned v. City of Rockford, 408 U.S. 104 (1972) and United States v. Williams, 553 U.S. 285 (2008), the court held that “instruction” and “human sexuality” may be broad but are not standardless. “Human sexuality” clearly includes sex education and STDs (as Smiley conceded), and extends to anatomy, reproduction, sexual conduct, intimacy, and orientation. The existence of borderline applications is not enough to facially invalidate a statute.
Arbitrary enforcement concerns are speculative: Although the statute does not specify an enforcement mechanism, Indiana’s teacher-licensing framework exists and includes process. The court declined to assume Indiana would enforce the law arbitrarily, especially given the statute’s core meaning and the State’s representation that licensing actions for curriculum violations are rare; as-applied challenges remain available.
Institutional competence and federalism: Echoing Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010) and Trustees of Ind. Univ. v. Curry, 918 F.3d 537 (7th Cir. 2019), the court emphasized that when a narrowing construction could clarify a term central to First Amendment analysis, it is prudent to allow state courts to interpret the law rather than preemptively adopting a broad reading in federal court.

Impact

Reinforces curriculum-control authority over K–12 classroom speech: By centering Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477 (7th Cir. 2007) and Brown v. Chi. Bd. of Educ., 824 F.3d 713 (7th Cir. 2016), the opinion strengthens the proposition that most instructional choices in elementary classrooms are “official duties” and thus not protected against state curriculum restrictions.
Raises the practical bar for facial challenges to education statutes: Litigants attacking curricular measures in the Seventh Circuit should expect heavy emphasis on posture: pre-enforcement facial claims must show substantial protected speech is realistically covered and that challenged terms lack a core meaning—both difficult showings here.
Channels disputes toward as-applied litigation and state-court interpretation: The court signals that borderline scenarios (e.g., expressive displays, library materials, incidental conversations) are better litigated as concrete enforcement disputes, potentially after Indiana courts have offered narrowing interpretations.
Limits “chilling effect” arguments where core meaning is clear: Even in speech-adjacent contexts, the court treats “steer far wider” chilling claims as insufficient where statutory terms have an ascertainable core and the alleged chilling applications sit at the periphery.

Complex Concepts Simplified

Preliminary injunction: A temporary court order entered early in a case. The plaintiff must show, among other things, a strong likelihood of ultimately winning. Because it is extraordinary relief, courts require a persuasive showing, not just plausible arguments.
Facial vs. as-applied challenge: A facial challenge argues a law is invalid in most or all of its applications, often before any enforcement occurs. An as-applied challenge argues a law is unconstitutional in the specific way it was enforced against a particular person. Courts are typically more receptive to as-applied challenges because the facts are concrete, not hypothetical.
Overbreadth (First Amendment): A special doctrine allowing a law to be struck down if it bans a substantial amount of protected speech compared to what it legitimately regulates, even if the plaintiff’s own speech might not be protected. The goal is to prevent laws from chilling others’ speech.
Vagueness (Due Process): A law is too vague if ordinary people cannot tell what it prohibits (lack of fair notice) or if it gives officials too much discretion, enabling arbitrary enforcement. But the Constitution does not require perfect drafting; courts look for an “ascertainable core” meaning.
Public employee “official duties” speech: When teachers speak as part of their job—especially in teaching and classroom management—the government may control that speech as the employer/state. In the Seventh Circuit’s K–12 context, in-class instruction is typically treated as official-duty speech and not protected against curricular directives.

Conclusion

The Seventh Circuit’s decision in Kayla Smiley v. Katie Jenner underscores two controlling themes: (1) pre-enforcement facial challenges to education statutes face a steep climb, and (2) a curriculum restriction aimed at Pre‑K–3 “instruction” will often regulate predominantly unprotected official-duties speech, defeating an overbreadth theory absent a realistic showing that substantial protected speech is swept in. On vagueness, the court held that “instruction” and “human sexuality” possess an ascertainable core; borderline applications are to be handled through interpretation and as-applied litigation, not facial invalidation.