Kayla Smiley v. Katie Jenner

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-2543

KAYLA SMILEY,

Plaintiff-Appellant,

v.

KATIE JENNER,

Defendant-Appellee.

____________________

Appeal from the United States District Court for

the Southern District of Indiana, Indianapolis Division.

No. 1:23-cv-01001-JPH-MKK — James P. Hanlon, Judge.

____________________

ARGUED FEBRUARY 23, 2024 — DECIDED APRIL 21, 2026

____________________

Before SCUDDER, JACKSON-AKIWUMI, and PRYOR, Circuit

Judges.

SCUDDER, Circuit Judge. In 2023, Kayla Smiley was due to

begin teaching grades 1–3 in the Indianapolis Public School

system when Indiana enacted a statute prohibiting public

schools and their teachers from providing “instruction” on

“human sexuality” to students in prekindergarten through

third grade. Ms. Smiley invoked 42 U.S.C. § 1983 and chal-

lenged the measure as facially overbroad and vague in

2 No. 23-2543

violation of the First and Fourteenth Amendments. She asked

the district court to declare the curriculum limitation uncon-

stitutional and to enjoin its enforcement. Because Ms. Smiley

has failed to show a likelihood of success on the merits, we

affirm the district court’s denial of a preliminary injunction.

I

A

Indiana law establishes curriculum requirements for cer-

tain schools within the state. See Ind. Code § 20-30-1-1 et seq.,

20-30-17-1. In 2023, the state General Assembly passed Indi-

ana House Enrolled Act 1608, 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 in-

struction to a student in prekindergarten

through grade 3 on human sexuality.

Id. § 20-30-17-2.

By its terms, HEA 1608 allows teachers to “respond[] to a

question from a student” on human sexuality. Id. § 20-30-17-

4. It also permits teachers to instruct on academic standards

“developed by the department [of education]” on enumer-

ated subjects (such as science and math) and to provide re-

quired instruction on child abuse and child sexual abuse not-

withstanding the restriction imposed by the curriculum limi-

tation. See id. § 20-30-17-3; see also id. §§ 20-31-3-2, 20-30-5-5.7.

But the General Assembly otherwise left the terms “instruc-

tion” and “human sexuality” undefined.

No. 23-2543 3

The Indiana Department of Education administers state li-

censing standards for teachers. On the recommendation of the

Secretary of Education, the Department may suspend or re-

voke a teacher’s license for: “(1) immorality; (2) misconduct in

office; (3) incompetency; or (4) willful neglect of duty.” Id.

§ 20-28-5-7. Indiana law also permits a teacher to challenge a

licensing action in an administrative process. See id. §§ 20-28-

5-7, 4-21.5-3-1 et seq.

Kayla Smiley filed this action in federal court in Indianap-

olis in June 2023, a month before HEA 1608 was set to go into

effect and shortly before she would begin teaching grades 1–

3 in the 2023–2024 school year. Ms. Smiley alleges that Sec-

tion 20-30-17-2 will capture, or at least chill, protected speech

that she primarily wishes to engage in while serving as an el-

ementary school teacher. She points to some specific exam-

ples of speech, such as the choice to include books in her class-

room 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.

Ms. Smiley also contends that HEA 1608’s prohibition on

“instruction” on “human sexuality” is unconstitutionally

vague. She 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.

B

The district court declined to enjoin Section 20-30-17-2 be-

cause Ms. Smiley failed to show a likelihood of success on

4 No. 23-2543

either her First or Fourteenth Amendment claims. As to the

former, the court concluded that she did not identify much, if

any, speech protected by the First Amendment to which the

curriculum limitation applies. The district court reasoned that

an elementary school teacher’s official speech, which receives

no First Amendment protection, includes classroom instruc-

tion as well as communications that Ms. Smiley intends to en-

gage in elsewhere on school grounds, “even when spontane-

ous and not part of official curriculum,” because she wants to

use it to create “teachable moments.”

In reaching this conclusion, the district court highlighted

the elementary school context where many interactions be-

tween students and teachers occur outside of a formal lesson

plan and yet are central to a teacher’s role. The district court

also determined that even if Section 20-30-17-2 encroaches on

some protected speech, the limitation is not enough to sustain

an overbreadth challenge.

The district court further determined that “instruction …

on human sexuality” is not unconstitutionally vague because

both “instruction” and “human sexuality” contain a discern-

able core of meaning. Largely identifying that core herself,

Ms. Smiley acknowledged that “instruction” includes formal

classroom instruction and that “human sexuality” at least en-

compasses sex education and the provision of information on

sexually transmitted diseases. The district court emphasized

that “edge questions” about the scope of Section 20-30-17-2 do

not undermine the statute’s core meaning and should be re-

solved on an as-applied basis, not facially in a pre-enforce-

ment challenge.

Ms. Smiley appealed.

No. 23-2543 5

II

A preliminary injunction is an “extraordinary remedy.”

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To

obtain such relief, a plaintiff bears the heavy burden of show-

ing that she is likely to succeed on the merits, suffer irrepara-

ble harm absent preliminary relief, that the balance of equities

tips in her favor, and that an injunction is in the public inter-

est. See id. at 20.

In reviewing a district court’s grant or denial of a prelimi-

nary injunction, we review its legal conclusions without def-

erence, its factual findings for clear error, and its balancing of

harms for abuse of discretion. See Richwine v. Matuszak, 148

F.4th 942, 952 (7th Cir. 2025). “Absent such errors, we afford

a district court’s decision great deference.” Speech First, Inc. v.

Killeen, 968 F.3d 628, 638 (7th Cir. 2020), as amended on denial of

reh’g and reh’g en banc (Sep. 4, 2020) (cleaned up).

Ms. Smiley is represented by very able counsel, and the

essence of her challenge to HEA 1608 is clear. She contends

that Section 20-30-17-2 lacks a discernable core of meaning

and will thereby discourage her from engaging in protected

speech or cause her to violate the statute unwittingly and risk

losing her teaching license. From this foundation, Ms. Smiley

advances two related claims—a First Amendment over-

breadth claim and a Fourteenth Amendment vagueness

claim. Her vagueness claim, in turn, has two components.

First, she sees the statute as too vague for the average layper-

son to understand its limitations. Second, she contends that

Section 20-30-17-2 has no standard for enforcement, opening

the door to arbitrary and discriminatory licensing actions by

the Indiana Department of Education.

6 No. 23-2543

The posture of Ms. Smiley’s claims complicates her bur-

den. She elected to bring a facial challenge to a state law be-

fore Indiana or its courts had a chance to implement or inter-

pret it. “[T]hat decision comes at a cost.” Moody v. NetChoice,

LLC, 603 U.S. 707, 723 (2024); see also Parents Protecting Our

Child., UA v. Eau Claire Area Sch. Dist., 95 F.4th 501, 506 (7th

Cir. 2024) (“[S]weeping pre-enforcement facial invalidation of

law is highly disfavored …. [E]specially so where … the relief

sought implicates a local policy and weighty principles of fed-

eralism.”). Among other concerns, facial challenges risk

premature interpretation of a statute based upon speculative

facts. See Moody, 603 U.S. at 723. They also “‘threaten to short

circuit the democratic process’ by preventing duly enacted

laws from being implemented in constitutional ways.” Id.

(quoting Wash. State Grange v. Wash. State Republican Party, 552

U.S. 442, 451 (2008)). The Supreme Court has consequently set

a high bar for facial invalidation, though “[i]n First Amend-

ment cases … th[e] Court has lowered that very high bar”

slightly. Id. Nevertheless, we agree with the district court that

Ms. Smiley has not met it.

A

We begin with the legal framework for a First Amendment

overbreadth claim and a Fourteenth Amendment vagueness

claim brought in a facial context.

A facial challenge typically requires a plaintiff to show

that “no set of circumstances exists under which the Act

would be valid.” United States v. Salerno, 481 U.S. 739, 745

(1987). The overbreadth doctrine relaxes this standard in the

First Amendment context. To “provide[] breathing room for

free expression,” a statute is facially invalid on overbreadth

grounds if it “‘prohibits a substantial amount of protected

No. 23-2543 7

speech’ relative to its ‘plainly legitimate sweep’” despite hav-

ing some constitutional applications. United States v. Hansen,

599 U.S. 762, 769–70 (2023) (quoting United States v. Williams,

553 U.S. 285, 292 (2008)). Any unconstitutional application

that a plaintiff hypothesizes, however, must be “realistic, not

fanciful.” Id. at 770; see also Members of City Council of Los An-

geles v. Taxpayers for Vincent, 466 U.S. 789, 800–01 (1984)

(“‘[S]ubstantial overbreadth’ is not readily reduced to an ex-

act definition …. [T]here must be a realistic danger that the

statute itself will significantly compromise recognized First

Amendment protections of parties not before the Court ….”).

Our “first task” in reviewing a combined overbreadth and

vagueness challenge, as we do here, is to determine whether

the curriculum limitation in Section 20-30-17-2 “reaches a sub-

stantial amount of constitutionally protected conduct.” Vill. of

Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 494

(1982). If it does not, the statute is not overbroad. See id.

As for vagueness, a law is unconstitutionally vague if it

fails to “give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited” or would result in

“arbitrary and discriminatory enforcement.” Grayned v. City

of Rockford, 408 U.S. 104, 108 (1972). If the act reaches no con-

stitutionally protected activity, the statute survives if it has

even one valid application, reflecting the traditional Salerno

standard. See Flipside, 455 U.S. at 494–95. Otherwise, when a

law regulates speech, it “must meet a higher standard of clar-

ity and precision” to survive a vagueness challenge. Wis.

Right to Life, Inc. v. Barland, 751 F.3d 804, 835 (7th Cir. 2014).

“[P]erfect clarity and precise guidance have never been re-

quired.” Williams, 553 U.S. at 304. Instead, we scrutinize the

law closely and ask whether it has an ascertainable core of

8 No. 23-2543

meaning. See, e.g., Smith v. Goguen, 415 U.S. 566, 573 (1974)

(acknowledging a higher standard in the First Amendment

context and applying it to a criminal law affecting protected

speech); Brown v. Kemp, 86 F.4th 745, 772–74 (7th Cir. 2023)

(same).

B

Ms. Smiley’s overbreadth and vagueness challenges both

address the limitation Indiana law imposes on “instruction.”

If the term is vague, Section 20-30-17-2 risks limiting a wider

range of speech and is therefore more likely to be overbroad.

See Flipside, 455 U.S. at 494 n.6 (observing that “the vagueness

of a law affects overbreadth analysis” because “ambiguous

meanings cause citizens to ‘steer far wider of the unlawful

zone’” (quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964))). So

we begin our analysis with the meaning of “instruction.”

While the General Assembly did not define “instruction,”

the term most commonly means “the action, practice, or pro-

fession of teaching,” Instruction, Merriam-Webster’s Diction-

ary, https://www.merriam-webster.com/dictionary/instruc-

tion (last visited Apr. 21, 2026), and “knowledge or authorita-

tive guidance imparted by one person to another,” Instruction,

Oxford English Dictionary Online, https://www.oed.com/dic-

tionary/instruction_n?tab=meaning_and_use#387233 (last

visited Apr. 21, 2026). Section 20-30-17-2 resides in Article 30

of the Indiana Code, entitled “Curriculum,” which, as its title

implies, concerns teacher and school staff interactions with

students on school grounds and in connection with academic

requirements or school-sanctioned activities. See generally

§ 20-30-1-1 et seq.

No. 23-2543 9

Applying this common meaning within its statutory con-

text, we see “instruction” as limited in the main to a teacher’s

efforts to impart knowledge for a pedagogical purpose. That

Section 20-30-17-2 also applies to school staff other than teach-

ers does not convince us that “instruction” is overbroad or

vague because, as Ms. Smiley acknowledges, non-teachers

provide education to students too. Put most directly, Sec-

tion 20-30-17-2 at least applies to Pre-K–3 classroom instruc-

tion—the delivery of educational lessons and content to stu-

dents. On this, the parties agree.

The recognition that much Pre-K–3 instruction occurs in

the classroom setting brings with it a companion legal point

of great adverse consequence for Ms. Smiley’s First Amend-

ment challenge. Our law is clear that primary teachers in pub-

lic schools have only limited speech rights just like other pub-

lic employees. See Brown v. Chi. Bd. of Educ., 824 F.3d 713, 716

(7th Cir. 2016) (distinguishing primary and secondary school

teachers from university lecturers). Even more, their in-class-

room instruction does not enjoy First Amendment protection.

See id. at 715 (“[I]n-classroom instruction necessarily consti-

tutes ‘statements pursuant to [the teacher’s] official duties.’”

(quoting Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d

477, 479 (7th Cir. 2007))). This is true whether a teacher deliv-

ers a formal lesson pursuant to a curriculum mandate or gives

a spontaneous lecture. See id. (holding that an impromptu in-

class lesson on racial epithets during a grammar lesson was

made pursuant to a sixth-grade teacher’s official duties);

Mayer, 474 F.3d at 479–80 (holding the same for an elementary

school teacher’s personal comments on the Iraq War made

during a current-events lesson).

10 No. 23-2543

Do not overread what we are saying, for we have no doubt

that “instruction” within the meaning of Section 20-30-17-2

may include some noncurricular student-teacher interactions

outside the classroom—for example, in hallways, on the play-

ground, or in other common school settings. But this observa-

tion does not advance Ms. Smiley’s overbreadth claim very

far because a teacher’s official responsibilities extend beyond

classroom walls—for example, maintaining order among stu-

dents is one of a teacher’s “most basic duties.” Brown, 824 F.3d

at 715. So Ms. Smiley’s anticipated need to “quell student mis-

behavior” by educating them on the use of pejorative terms

related to sexual identity such as “gay” is not protected

speech, whether it occurs in a classroom, a hallway, or else-

where on school grounds. Id.

Of course, not everything a teacher says in the public

school setting is unprotected. See Kennedy v. Bremerton Sch.

Dist., 597 U.S. 507, 529–31 (2022) (analyzing whether a public

high school football coach’s prayer on the field qualified as

private speech). Nobody, for example, contends that Ms. Smi-

ley cannot share her personal views or address matters of

public concern in the teachers’ lounge.

But a public employee’s private speech, including speech

by an elementary school teacher like Ms. Smiley, “may lose

constitutional protection if the government’s interest in work-

place efficiency outweighs the employee’s interest in speak-

ing freely.” Hedgepeth v. Britton, 152 F.4th 789, 795 (7th Cir.

2025); see also Kennedy, 597 U.S. at 531 (observing that this

second consideration remained after determining that a pub-

lic employee’s speech was private). Indeed, our case law is

clear that the Constitution “does not entitle [primary and sec-

ondary school] teachers to present personal views to captive

No. 23-2543 11

audiences against the instructions of elected officials.” Mayer,

474 F.3d at 480; see also Darlingh v. Maddaleni, 142 F.4th 558,

566–67 (7th Cir. 2025) (observing in the context of an elemen-

tary school guidance counselor’s First Amendment retaliation

claim that a teacher’s “inordinate amount of trust and author-

ity” makes the government’s interest in a school’s educational

environment more compelling (cleaned up)).

Ms. Smiley nevertheless urges us to conclude that her pro-

vision of select books in her classroom library as well as her

display of stickers on her water bottle and car conveying pro-

LGBTQ+ messages qualify as private speech under Kennedy.

In Kennedy, the Supreme Court determined that a public

high school football coach spoke as a private citizen on a mat-

ter of public concern when he prayed on the field following

games. The coach received no compensation to offer prayer,

prayed only after his coaching responsibilities ended and he

was free to attend to personal matters while the team engaged

in other activities, and did not direct his prayer at the team.

See Kennedy, 597 U.S. at 529–30.

Ms. Smiley’s selection of books for her classroom library is

easily distinguishable. Unlike the prayers Coach Kennedy led

after football games as a private citizen, Ms. Smiley provides

classroom books because of her role as a teacher. Even more,

the books are expressly directed at, and provided for, her stu-

dents in the classroom—the quintessential teaching environ-

ment. Her choice of classroom books is therefore not pro-

tected speech.

The stickers that Ms. Smiley displays on her car and water

bottle require a different analysis. Some usages of stickers

may qualify as “instruction” under the Indiana statute and as

12 No. 23-2543

protected speech. But defining those circumstances need not

detain us. Even assuming the statute prohibits some protected

speech expressed through stickers on a car or water bottle,

these instances are few relative to the plainly legitimate sweep

of Section 20-30-17-2 and do not render it overbroad.

As a final point, Ms. Smiley also worries that “instruction”

might cover “chance meetings” she has with students outside

of school. This concern roots itself in a strained reading of Sec-

tion 20-30-17-2, for “instruction” is housed within an article of

the Indiana Code that exclusively regulates student-teacher

interactions that occur on school grounds or in connection

with school-sanctioned activities. See generally § 20-30-1-1 et

seq.

All of this leads us to conclude that Section 20-30-17-2 is

not overbroad because it likely does not implicate a substan-

tial amount of protected speech.

C

Nor can Ms. Smiley prevail on her vagueness claim, even

if we accept that Section 20-30-17-2 affects some protected

speech.

The Supreme Court has made clear that the Due Process

Clause does not require states to legislate with surgical preci-

sion. Indeed, the Justices have underscored that it would be a

“basic mistake” for a court to declare a statute void for “the

mere fact that close cases can be envisioned.” Williams, 553

U.S. at 305 (rejecting a vagueness challenge to a criminal stat-

ute encompassing some First Amendment activity). Indeed,

“[c]lose cases can be imagined under virtually any statute.”

Id. at 306; see also Wash. State Grange, 552 U.S. at 449–50 (“In

determining whether a law is facially invalid, we must be

No. 23-2543 13

careful not to … speculate about ‘hypothetical’ or ‘imaginary’

cases.”).

Our cases emphasize the same point. “A statute need not

define every term to survive a vagueness challenge,” Brown,

824 F.3d at 717, and we will sustain a facial challenge only

where the “statute ‘simply has no core’ and lacks ‘any ascer-

tainable standard for inclusion and exclusion,’” United States

v. Cook, 970 F.3d 866, 873 (7th Cir. 2020) (quoting United States

v. Jones, 689 F.3d 696, 703 (7th Cir. 2012)); see also Trustees of

Ind. Univ. v. Curry, 918 F.3d 537, 540 (7th Cir. 2019) (“Some

uncertainty at the margins does not condemn a statute.”). Put

another way, the bar for facially invalidating a statute on

vagueness grounds is very high, especially for civil statutes,

which receive “greater tolerance … because the consequences

of imprecision are qualitatively less severe” than a criminal

penalty. Flipside, 455 U.S. at 498–99; see also Planned

Parenthood of Ind. & Ky., Inc. v. Marion County Prosecutor, 7

F.4th 594, 600 (7th Cir. 2021) (same) (collecting cases).

Here too, Ms. Smiley falls short. Not only does the term

“instruction” have an ascertainable core of meaning, the

handful of examples Ms. Smiley sees as more worrisome—

such as her display of pro-LGBTQ+ stickers on her water bot-

tle or the provision of certain books in her classroom library—

arise only at the margins compared to the wide swath of situ-

ations clearly within the Indiana statute’s ambit.

The same is true of Indiana’s limitation of instruction on

“human sexuality.” Ms. Smiley admits that “human sexual-

ity” at least includes sex education and sexually transmitted

diseases. And the plain meaning of the term, of course, ex-

tends further to cover human sexual anatomy, sexual repro-

duction, sexual conduct and intimacy, and sexual orientation.

14 No. 23-2543

It is also worth underscoring the difference between “in-

struction” on “human sexuality” and terms that have ren-

dered statutes unconstitutionally vague in the past: “annoy-

ing” conduct, “common night walkers,” “habitual loafers,”

and “elaboration” on the “general” nature of a criminal de-

fendant’s defense strategy, for instance. See Coates v. City of

Cincinnati, 402 U.S. 611, 612–14 (1971); Papachristou v. City of

Jacksonville, 405 U.S. 156, 156 n.1, 162–64, 166–67 (1972); Gentile

v. State Bar of Nev., 501 U.S. 1030, 1048–49 (1991); see also Nat’l

Endowment for the Arts v. Finley, 524 U.S. 569, 599–600 (1998)

(Scalia, J., concurring) (observing that but for the fact that a

statute concerned government funding, the term “artistic ex-

cellence” would render it vague). The latter terms are subjec-

tive “terms of degree” with “no settled usage or tradition of

interpretation in law.” Gentile, 501 U.S. at 1049. “Instruction”

and “human sexuality” are different. Though each term en-

compasses more than one definition, words with broad mean-

ing are not the same as vague words where, as here, each term

has an ascertainable core of meaning. “Resolving edge ques-

tions” around that core “is a principal role of the courts.”

Curry, 918 F.3d at 541.

All for good reason. “Condemned to the use of words,”

the Supreme Court has recognized that “we can never expect”

states to legislate with “mathematical certainty.” Grayned, 408

U.S. at 110. And, if need be, a Pre-K–3 teacher can always turn

to Indiana courts for guidance (a point we emphasized in

Curry, 918 F.3d at 541) or pursue an as-applied challenge in

federal or state court to some particular application of the stat-

ute. In the final analysis, any vagueness at the statute’s pe-

riphery will inevitably “be reduced through a process of in-

terpretation.” Id. (quoting Bauer v. Shepard, 620 F.3d 704, 717

(7th Cir. 2010)).

No. 23-2543 15

Another observation warrants mention on Ms. Smiley’s

combined overbreadth and vagueness claim. Where a term

that seems to save a state law from a First Amendment chal-

lenge (here, “instruction”) is also alleged to be unconstitution-

ally vague, it is prudent to wait for a state court to provide

clarity. See Bauer, 620 F.3d at 716. This is so even where, as

here, the State says it has no immediate plans to provide clar-

ity. Instead of assuming state officials will “take an untenably

broad reading [of a statute],” it is “more respectful of our ju-

dicial colleagues in Indiana[] to assume that they will act sen-

sibly and resolve the open questions in a way that honors …

[First Amendment] rights.” Id. We emphasized this same

principle in Curry, 918 F.3d at 541.

D

In closing, we address one final aspect of Ms. Smiley’s

Fourteenth Amendment vagueness claim. A statute can be

unconstitutionally vague if its implementation would result

in “arbitrary and discriminatory enforcement.” Grayned, 408

U.S. at 108.

Drawing on this principle, Ms. Smiley contends that Sec-

tion 20-30-17-2 lacks any standard for enforcement. At one

level, her observation is fair, for Section 20-30-17-2 is silent on

enforcement. A separate statute states that Indiana can sus-

pend or revoke a teacher’s license for “misconduct” and other

broad categories of wrongdoing without much elaboration

(although it does establish an adjudicatory process). See

§§ 20-28-5-7, 4-21.5-3-1 et seq.

But the core meaning we see in Section 20-30-17-2’s curric-

ulum limitation makes arbitrary or discriminatory enforce-

ment unlikely. Nor does Ms. Smiley cast any doubt on the

16 No. 23-2543

State’s representation that licensing actions are rare and vir-

tually non-existent for curriculum-related violations. In short,

we do not “assume” that Indiana will enforce the statute im-

properly or “take no further steps to minimize the dangers of

arbitrary enforcement.” Planned Parenthood, 7 F.4th at 605

(quoting Flipside, 455 U.S. at 504). If that proves inaccurate,

Ms. Smiley (or another affected party), may bring an as-ap-

plied challenge.

III

Much of our reasoning today follows from the fact that

Ms. Smiley brought facial and pre-enforcement challenges.

Settled law counsels us to tread carefully when reviewing a

state law in this posture. This is especially true in the context

of primary education where states have historically exercised

great discretion. See San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1, 58 (1973) (“The consideration and initiation of fun-

damental reforms with respect to … education are matters re-

served for the legislative processes of the various States ….”).

Against this backdrop, Ms. Smiley has not shown that Sec-

tion 20-30-17-2 is likely overbroad or vague, leaving us to

AFFIRM the judgment of the district court.