Restriction on K-12 Teaching of Certain Race/Sex-Related "Concepts" Not Unconstitutionally Vague
· Reason
So the Tenth Circuit held Wednesday, in Black Emergency Response Team v. Drummond; a short excerpt from the opinion, by Judge Gregory Phillips, joined by Judge Harris Hartz:
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Under subsection B of Oklahoma H.B. 1775, public-school employees may not "require or make part of a course" any of eight prohibited "concepts." Each concept is a principle that, if taught, would advocate race or sex discrimination. {Those eight concepts match eight "[d]ivisive concepts" from an earlier federal executive order, which forbade "promot[ing] race or sex stereotyping or scapegoating in the Federal workforce."} If a school employee violates subsection B, his or her license or certificate may be suspended or even revoked. …
As we interpret it, subsection B prohibits school employees from teaching the prohibited concepts as correct principles or requiring teachers to do so. For example, a teacher can't teach that "one race or sex is inherently superior to another race or sex," and an administrator can't require a teacher to teach that "an individual's moral character is necessarily determined by his or her race or sex." Though the plaintiffs fear that subsection B prohibits educators from discussing the eight concepts in the abstract or in connection with historical or popular figures, the statute's language does not support such a broad interpretation. Under subsection B's plain text, the plaintiffs aren't likely to show that subsection B is vague….
Subsection B reads:
The provisions of this subsection shall not prohibit the teaching of concepts that align to the Oklahoma Academic Standards.
[1.] No teacher, administrator or other employee of a school district, charter school or virtual charter school shall require or make part of a course the following concepts:
[a.] one race or sex is inherently superior to another race or sex,
[b.] an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously,
[c.] an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex,
[d.] members of one race or sex cannot and should not attempt to treat others without respect to race or sex,
[e.] an individual's moral character is necessarily determined by his or her race or sex,
[f.] an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex,
[g.] any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex, or
[h.] meritocracy or traits such as hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race.[2.] The State Board of Education shall promulgate rules, subject to approval by the Legislature, to implement the provisions of this subsection.
As the court elaborated,
Subsection B begins with a general statement protecting "the teaching of concepts that align to the Oklahoma Academic Standards." The Academic Standards are "standards for instruction" adopted by the State Board of Education. They "serve as expectations for what students should know and be able to do by the end of the school year." They do not "dictate how teachers should teach," "mandate a specific curriculum," "limit advanced work beyond the standards," "prescribe all that can or should be taught," or "limit efforts to prepare students for college, career, and citizenship readiness."
Subsection B ends by authorizing the State Board of Education to implement appropriate rules. Under that authority, the Board adopted a rule that school employees shall not "require or make part of any Course offered in a Public School" any of subsection B's eight "discriminatory principles." If an employee violates subsection B or its implementing rule, the State Board of Education "shall make a determination of whether to initiate proceedings to suspend [the school employee's] license or certificate." And if the violation is "willful," the Board "shall initiate proceedings to revoke [the employee's] license or certificate." …
The court concluded that "make part of a course" wasn't vague, because it read the phrase fairly narrowly:
The K–12 plaintiffs aren't likely to show that the term "make part of a course" is vague, facially or as applied. Even if a law has multiple reasonable interpretations, for showing a likelihood of success on the merits, what matters is the law's most likely interpretation. And we think "make part of a course" most likely means teach as correct principles or require teachers to do so….
The K–12 plaintiffs say it is unclear whether "mak[ing] part of a course" includes reading "texts … that directly mention" the prohibited topics or allowing student-initiated discussions "about these topics in response to readings and instruction on current events."
We disagree that subsection B is unclear on those points. Sure, we could debate the contours of "make part of a course"—in other words, what it means to "teach." But that debate would be meaningless in the context of this statute. Whether we read "make part of a course" broadly or narrowly, a teacher would not violate subsection B unless the teacher taught race or sex discrimination as specified in the concepts. And a teacher won't do that by accident. To see why, consider the eight concepts' plain language, paying close attention to the verbs and their auxiliaries:
[a.] one race or sex is inherently superior to another race or sex,
[b.] an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously,
[c.] an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex,
[d.] members of one race or sex cannot and should not attempt to treat others without respect to race or sex,
[e.] an individual's moral character is necessarily determined by his or her race or sex,
[f.] an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex,
[g.] any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex, or
[h.] meritocracy or traits such as hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race….
That means to violate subsection B, a teacher must present the concepts as fact, just as the statute does. So a teacher would not violate subsection B by instructing about a historical or popular figure's beliefs, nor by encouraging discussion about current events and ideas. But a teacher would violate subsection B by instructing students that any of the eight racist or sexist concepts is correct.
The statute's plain text eliminates any concerns about chilling instruction on historical events, social theories, or public policy. For example, the dissent worries that in instructing about the Tulsa Race Massacre, "the teacher has likely taught, and endorsed as correct, the view that the Massacre was indeed horrific, and students may honestly believe that the message conveyed is that they 'bear responsibility,' and should feel 'discomfort, guilt, or anguish.'" But under the statute's plain text, the teacher is free to instruct about the massacre. The teacher is prohibited only from interjecting "thus, white people are inherently superior to black people," or "thus, black people are inherently superior to white people," or "thus, those of you who are white should feel discomfort, guilt, or anguish," and so on.
In short, subsection B prohibits teachers from proselytizing students to accept certain racist or sexist creeds as truth. Apart from any prohibited racist or sexist editorializing, teachers remain free to instruct about historical or popular issues, and students remain free to draw their own conclusions.
And the court concluded the prohibited concepts weren't themselves unconstitutionally vague:
We now turn to the eight concepts that subsection B prohibits from being taught in the classroom as correct principles. The K–12 plaintiffs aren't likely to show that these concepts are vague…. [A]gain, when read in context, concepts (c) and (d) prohibit only teaching as correct principles that someone "should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex" or that "members of one race or sex cannot and should not attempt to treat others without respect to race or sex."
We also disagree that subsection B's protection for teaching topics that "align to" Oklahoma's Academic Standards "deepens the [law's] vagueness." The Academic Standards don't change the eight prohibited concepts. The standards specifically protect some topics for teaching, but that is a wholly separate consideration from what the eight concepts prohibit.
In sum, the concepts' plain language and context "provide people of ordinary intelligence a reasonable opportunity to understand" what the concepts prohibit….
The court declined to reach the challenger's argument that subsection B violates the First Amendment right to receive information, because it concluded that the plaintiff's hadn't properly appealed the district court decision rejecting that argument.
Judge Nancy Moritz dissented; a brief excerpt:
Although I agree that "make part of a course" likely means "to teach," the term "teaching" is far broader in scope than dispensing a sterile set of correct-or-incorrect facts to students—teaching involves responding to questions, leading open-ended discussions, and exploring real-world parallels to, and the legacies of, historical events. These many instructional activities, particularly when combined with the statute's supposed safe harbor for teaching within Oklahoma's Academic Standards, make it substantially likely that this law is unconstitutionally vague. And although I write alone in this case, I am far from alone in reaching this conclusion: every other court facing vagueness challenges to similar laws has found those laws vague. For these reasons, I respectfully dissent….
I begin with the umbrella language of § 24-157(B)(1), which states that no school personnel "shall require or make part of a course" the eight banned concepts…. If "make part of a course" essentially means "teach," as the majority and I accept, then the law prohibits far more than reciting a series of banned principles as "correct" or "as fact." That's because "teach" includes many different instructional techniques. Teach, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/teach (last visited August 13, 2026) (listing, among other definitions, "to cause to know something," "to cause to know how," "to accustom to some action or attitude," "to guide the studies of," "to impart the knowledge of," and "to instruct by precept, example, or experience" (emphases added)). Simply stated, the mere fact that the banned concepts are expressed in the present tense doesn't permit us to narrow these meanings or choose among them.
The majority's leap from "teaching" to "teaching as correct principles" or "teaching as fact" also ignores Oklahoma's Academic Standards. Many of those standards "focus on deep thinking, conceptual understanding, and real-world problem-solving skills." And they encourage "creating opinions and arguments." As the standards make plain, teachers "teach" without labelling every concept conveyed as correct or incorrect or as fact or fiction….
Even the majority's limiting principle does not fully resolve the vagueness problem. To begin with just one example from above, regarding the Tulsa Race Massacre, the teacher has likely taught, and endorsed as correct, the view that the Massacre was indeed horrific, and students may honestly believe that the message conveyed is that they "bear[ ] responsibility," and should feel "discomfort, guilt, [or] anguish.", in a plausible sense, the teacher has made the banned concept part of the course "as fact" or as a "correct principle"—if the event itself was horrific, guilt is an understandable response. But has the teacher violated the law under the majority's interpretation? I'm not sure.
Suppose instead that a student asks about reparations or affirmative action, inherently concepts that involve one racial group accepting "responsibility" for past actions of that racial group. Must the teacher in either case inform the class that belief in affirmative action or reparations is "incorrect" or risk having made the banned concept part of the course "as fact" or as a "correct principle"? Even more confusingly, what if a teacher affirms that one of the banned concepts was once correct but currently is not? For instance, what if a teacher argues, for purposes of a debate in a government course, that meritocracy was once an oppressive concept, but now that the United States has developed, it no longer is? Has that teacher taught "as presently correct" or "as fact" the banned concept that "meritocracy or traits such as a hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race"? Maybe. But then again, maybe not. Despite this lack of clarity, the majority's decision ensures that tens of thousands of teachers across Oklahoma will have to answer such questions, on the fly, every single school day. What's more, they must do so knowing their livelihoods may depend on their answers….
Will Flanagan represents the state.
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