By its terms, HEA 1608 allows teachers to "respond[ ] to a question from a student" on human sexuality. It also permits teachers to instruct on academic standards "developed by the department [of education]" on enumerated subjects (such as science and math) and to provide required instruction on child abuse and child sexual abuse notwithstanding the restriction imposed by the curriculum limitation. But the General Assembly otherwise left the terms "instruction" and "human sexuality" undefined….

Plaintiff, who teaches "grades 1–3" sued, alleging that the law would "capture, or at least chill, protected speech that she primarily wishes to engage in while serving as an elementary school teacher," "such as the choice to include books in her classroom 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." She also "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."

But the court rejected her overbreadth and vagueness challenges. It began by determining what "instruction" the law covers: While the General Assembly did not define "instruction," the term most commonly means "the action, practice, or profession of teaching," and "knowledge or authoritative guidance imparted by one person to another." 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.

Applying this common meaning within its statutory context, we see "instruction" as limited in the main to a teacher's efforts to impart knowledge for a pedagogical purpose…. Section 20-30-17-2 at least applies to Pre-K–3 classroom instruction—the delivery of educational lessons and content to students. On this, the parties agree.

The court concluded that, so read, the law was not substantially overbroad: [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…. [Likewise,] Ms. Smiley's anticipated need to "quell student misbehavior" by educating them on the use of pejorative terms related to sexual identity such as "gay" is [also part of her official duties and thus] not protected speech, whether it occurs in a classroom, a hallway, or elsewhere on school grounds…. [T]he Constitution "does not entitle [primary and secondary school] teachers to present personal views to captive audiences against the instructions of elected officials." … [A] teacher's "inordinate amount of trust and authority" makes the government's interest in a school's educational environment more compelling ….

Ms. Smiley nevertheless urges us to conclude that her provision 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 v. Bremerton School Dist. (2022).

In Kennedy, the Supreme Court determined that a public high school football coach spoke as a private citizen on a matter 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. 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 students in the classroom—the quintessential teaching environment. Her choice of classroom books is therefore not protected speech. The court acknowledged that the law might apply to some speech that isn't part of the teacher's official d