On Wednesday the Tenth Circuit issued its ruling in Black Emergency Response Team v. Drummond, and here is a concise excerpt from the court’s opinion, authored by Judge Gregory Phillips with Judge Harris Hartz concurring:
Section B of Oklahoma H.B. 1775 bars public-school personnel from “requiring or making part of a course” any of eight prohibited notions. Each notion stands as a principle whose instruction would promote discrimination based on race or sex. {These eight notions correspond to eight divisive concepts previously identified in a federal executive order that sought to prohibit “promoting race or sex stereotyping or scapegoating in the Federal workforce.”} If a school employee violates subsection B, their license or certificate may face suspension or even revocation. …
Interpreting the provision, subsection B forbids teaching these eight notions as correct principles or compelling teachers to present them as such. For instance, a teacher may not teach that “one race or sex is inherently superior to another,” and an administrator may not demand a teacher to teach that “an individual’s moral character is necessarily determined by their race or sex.” Although the plaintiffs worry that subsection B could bar educators from discussing the eight notions in the abstract or in connection with historical or well-known figures, the statute’s language does not support such a sweeping interpretation. Read in plain terms, subsection B is unlikely to be declared vague by the courts… .
Subsection B states:
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 a strong 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 explained,
Subsection B begins with a broad assurance about “the teaching of concepts that align to the Oklahoma Academic Standards.” These standards set expectations for what students should know and be able to do by the end of the school year and are issued by the State Board of Education. They do not control how teachers teach, do not mandate a single curriculum, do not limit advanced work beyond the standards, do not dictate all that may or should be taught, and do not constrain efforts to prepare students for college, careers, and civic life.
Subsection B concludes by authorizing the State Board of Education to implement suitable rules. Under that grant of authority, the Board adopted a rule prohibiting school personnel from “requiring or making part of any Course offered in a Public School” any of subsection B’s eight “discriminatory principles.” If a staff member breaches subsection B or its implementing rule, the State Board of Education “shall determine whether to initiate proceedings to suspend [the staff member’s] license or certificate.” And if the violation is “willful,” the Board “shall initiate proceedings to revoke [the staff member’s] license or certificate.” …
The court held that the phrase “make part of a course” was not vague, interpreting it in a fairly narrow way:
The K–12 plaintiffs are unlikely to demonstrate that the term “make part of a course” is vague, either on its face or as applied. Even if a law can be read in several reasonable ways, the test for a likelihood of success on the merits is the interpretation that is most plausible. And we find that “make part of a course” most plausibly means presenting as correct principles or requiring teachers to present them as such….
The K–12 plaintiffs contend it is unclear whether “making part of a course” covers reading texts that directly reference the prohibited topics or permitting student-driven discussions about these topics in the context of readings and current-events instruction.
We disagree that subsection B is unclear on those points. Admittedly, there could be debate about the boundaries of “make part of a course”—in other words, what it means to “teach.” Yet such debate would be moot in the statute’s context. Whether we opt for a broad or a narrow reading of “make part of a course,” a teacher would violate subsection B only if they taught discrimination on the basis of race or sex as one of the eight concepts. And a teacher won’t do that by accident. To see why, examine the eight concepts’ wording, focusing on the verbs and their auxiliary forms:
[a.] one race or sex is inherently superior to another,
[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 regard 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 other psychological distress because of his or her race or sex, or
[h.] meritocracy or traits like hard work and discipline are racist or sexist or were created by members of a particular race to oppress others.That interpretation requires a teacher to present these notions as facts; that is the essence of subsection B. Consequently, a teacher would not violate subsection B by discussing a historical or public figure’s beliefs or by inviting discussion on current events and ideas. But instructing students that any of the eight racist or sexist notions is correct would violate the provision.
The plain text of the statute resolves worries about suppressing lessons on historical events, social theories, or public policy. For instance, the dissenting view that a Tulsa Race Massacre lesson could be misconstrued as implying that students “bear responsibility” and should feel guilt or distress is answered by the statute’s plain terms, which permit teaching about the massacre while prohibiting statements asserting that white people are naturally superior to Black people, or vice versa, or pressuring students to feel a prescribed emotion. In short, the provision bars teachers from pushing students toward accepting certain racist or sexist creeds as truth, while leaving teachers free to cover historical or contemporary topics and allowing students to form their own conclusions.
And the court found that the eight concepts themselves were not inherently vague:
We turn to the eight concepts that subsection B forbids. The K–12 plaintiffs are unlikely to prove that these ideas are vague. When viewed in context, concepts (c) and (d) merely prohibit teaching as correct that someone should be discriminated against or denied equal treatment, or that members of one race or sex cannot and should not strive to treat others with equal respect.
We also reject the claim that permitting topics that align with Oklahoma’s Academic Standards adds vagueness. The standards themselves do not alter the eight forbidden concepts. The standards cover certain topics for instruction, but that is a distinct matter from what the eight concepts forbid.
In short, the plain language and the surrounding context of the concepts give people of ordinary intelligence a reasonable path to understanding what is prohibited.
The court declined to address the challengers’ First Amendment claim about the right to receive information, noting that the plaintiffs had not properly appealed the district court’s ruling on that issue.
Judge Nancy Moritz wrote a dissent; here is a brief excerpt:
While I agree that “make part of a course” probably means “to teach,” the scope of teaching is broader than merely presenting a fixed set of correct-or-incorrect facts—teaching involves answering questions, guiding open discussions, and drawing connections to real-world continuities and the legacies of historical events. Taken together with the statute’s supposed safe harbor for instruction within Oklahoma’s Academic Standards, these instructional activities make it highly likely that the law is unconstitutionally vague. Although I write separately, my conclusion aligns with several other courts facing vagueness challenges to similar statutes. For these reasons, I respectfully dissent….
I begin with the general framework 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 equates to “teach,” as both the majority and I accept, then the law extends far beyond simply listing the eight concepts as correct or as fact. That is because teach encompasses a wide range of instructional methods. Teach, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/teach (last visited August 13, 2026) (offering definitions such as “to cause to know something,” “to show how to do something,” “to accustom to an action or attitude,” “to guide the studies of,” “to impart knowledge of,” and “to instruct by precept, example, or experience”); emphasis added). Simply put, the mere fact that the prohibited concepts appear in the present tense does not allow narrowing their meanings or choosing among them.
The majority’s leap from “teaching” to “teaching as correct principles” or “teaching as fact” also overlooks Oklahoma’s Academic Standards. Many standards emphasize deep thinking, conceptual understanding, and real-world problem-solving, and they encourage students to form opinions and arguments. They require teachers to teach without labeling every conveyed concept as right or wrong or as fact or fiction….
Even the majority’s limiting principle does not entirely resolve the vagueness issue. For instance, consider Tulsa again: if a teacher has taught that the Massacre was horrific and students reasonably conclude that they themselves bear responsibility and should feel guilt or distress, that could seemingly conflict with the majority’s interpretation. But under the majority’s reading, would the teacher have violated the law? The answer isn’t clear to me.
Suppose a student raises questions about reparations or affirmative action—concepts that involve one group acknowledging past wrongdoing. Must the teacher declare those positions “incorrect” under the law or risk having taught the concept “as present truth”? And what about a debate in which a teacher argues that meritocracy was once oppressive but, in an evolved society, may no longer be? Has the teacher taught the concept as currently correct or as fact? These questions illustrate the uncertain path many teachers would tread, and they could be deciding daily in every classroom, with the threat to their livelihoods hanging over them….
Will Flanagan represents the state.
