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Memorandum

The purpose of this memo is to outline constitutional concerns with 24LSO-0076, Parental rights in

education-1. Specifically, LSO has identified potential constitutional concerns related to: 1) impermissibly

prohibiting protected speech under the First Amendment of the United States Constitution and Article 1,

Section 20 of the Wyoming Constitution; 2) overbroad under the First Amendment of the United States

Constitution; 3) void for vagueness on due process grounds; and, 4) discriminatory under the Fourteenth

Amendment of the United States Constitution.

LSO cannot predict the outcome if 24LSO-0076 were enacted and challenged in court and offers no opinion

As currently drafted, the bill would restrict certain speech (classroom instruction on sexual orientation and

gender identity in grades K-3) that may impermissibly prohibit protected speech. The First Amendment

prohibits any law that, among other things, abridges the freedom of speech. The Fourteenth Amendment to

the United States Constitution makes the First Amendment applicable to the states. Murdock v.

Pennsylvania, 319 U.S. 105, 108 (1943). Similarly, Article 1, Section 20 of the Wyoming Constitution

provides that every person may freely speak and write on all subjects and goes further to provide a broader

protection by protecting the right to publish (that is, the right to make your speech and writing known). Tate

v. Akers,409 F. Supp. 978, 981-82 (D. Wyo. 1976).

Generally, "the First Amendment means that government has no power to restrict expression because of its

message, its ideas, its subject matter, or its content." Animal Legal Def. Fund v. Kelly, 9F 4th 1219, 1227

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content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest,

and that they leave open ample alternative channels for communication of the information." Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989). A law that targets protected speech in a content-based manner

is "presumptively unconstitutional" unless the law is narrowly tailored to serve that significant—or

or gender identity. For example, a student (or the student's family) may challenge the law as prohibiting the

completion of assignments (i.e., a family tree) or as prohibiting the student from saying anything about the

student's family structure. While students do not "shed their constitutional rights" to free speech at the school

door, the rights of students must be applied in light of the special characteristics of the school environment.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969); Morse v. Frederick, 551 U.S. 393,

396-397 (2007). Ultimately, schools may restrict school speech only if the speech would substantially and

materially disrupt the school's activities or impinge on the rights of other students. CI. G. v. Siegfried, 38 F.

4th 1270, 1276 (10th Cir. 2022); Tinker, 393 U.S. at 509.

Various courts have held that speech relating to sexual orientation or gender identity, whether spoken or

unspoken, is speech falling within the protection of the First Amendment. Young v. Giles Cty. Bd. of Educ.,

school district to refuse permission to a student group, the Gay-Straight Alliance, to post fliers or make

announcements about their off-campus group meetings. Caudillo v. Lubbock Indep. Sch. Dist., 311 F. Supp.

2d. 550, 556, 562-64 (N.D. Tex. 2004).

It is important to note that the courts that have opined on the specific issues mentioned or cited here are not

in the Tenth Circuit. The decisions discussed here would not be binding on that court or a district court in

Wyoming should the bill draft be challenged.

113, 118-19 (2003). A state cannot justify restrictions on constitutionally protected speech on the basis that

the restrictions are necessary to effectively suppress constitutionally unprotected speech. Ashcroft v. Free

Speech Coalition, 535 U.S. 234, 255 (2002).

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Depending on what a school district includes or considers as classroom instruction, the bill draft may

prohibit a substantial amount of protected speech in addition to any "plainly legitimate sweep" of speech

that would be permissible to exclude. Hicks, 539 at 118-19.

265-266 (Wyo. 1985). A statute violates due process if people "must necessarily guess at its meaning and

differ as to its application." Id. at 266. A statute may be challenged as void for vagueness as a facial

challenge (which is available only when the statute reaches a substantial amount of constitutionally

protected conduct or when the statute specifies no standard of conduct at all) or an as-applied challenge.

Giles v. State, 2004 WY 101, ¶ 15, 96 P.3d 1027, 1031-32 (Wyo. 2004).

While this bill draft does not criminalize a violation of the classroom-instruction prohibition, the bill draft

does contemplate that a school district may have discretion to determine what conduct is prohibited. In light

of the uncertainty in terms of what conduct may or may not be considered "classroom instruction," it is

possible that the bill draft may be challenged as being void for vagueness.

v. Olech, 528 U.S. 562, 564 (2000). A law that limits classroom instruction on sexual orientation and gender

identity and is challenged on equal-protection grounds may be upheld if the governmental interest

associated with the law is sufficient; how sufficient a law and the stated interest must be depend on the level

of scrutiny a court applies to the law. The level of scrutiny applied depends on whether the law's

classification involves a suspect class or implicates a fundamental right; if a suspect classification or

fundamental right is implicated, a court will apply a higher level (intermediate or strict) of scrutiny. Riddle

v. Hickenlooper, 742 F.3d 922, 927 (10th Cir. 2014). A distinction that involves a classification based on

sex is subject to an intermediate level of scrutiny, and the distinction can be sustained only if it is

"substantially related to an important governmental objective." Clark v. Jeter, 486 U.S. 456, 461 (1988).

While sex-based discrimination challenges are subject to intermediate scrutiny, it is not clear whether sexual

or invented in response to litigation, and cannot rely on overbroad generalizations about the different

capacities or preferences of males and females. Id.

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One federal court of appeals recently reviewed a school's dress-code requirement that, among other things,

required female students to wear skirts. Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 124-25 (4th Cir.

2022). In that case, the school argued that the dress code was justified by the need to "help to instill

concluded that the rationales were "based on impermissible gender stereotypes" and rested on "nothing

more than conventional notions about the proper station in society for males and females." Id. While this

case considered the legitimacy of traditional values as an important governmental objective, it is important

to note that the Equal Protection analysis addressed a sex-based classification, not one concerning sexual

orientation or gender identity.

The issues raised in this memorandum are issues that plaintiffs have raised in their lawsuit challenging the

constitutionality of Florida's law (from which this bill draft is based). As of the date of this memorandum,