The United States Court of Appeals for the Tenth Circuit has rejected an HB 1775 vagueness challenge, ruling that Oklahoma’s restriction on teaching eight race- and sex-related concepts in public schools is not unconstitutionally vague and that full enforcement of the law may proceed while the underlying litigation continues.
The decision, issued in consolidated appeals captioned Black Emergency Response Team et al. v. Gentner Drummond (case numbers 24-6139, 24-6140, and 24-6141), was authored by Judge Gregory Phillips and joined by Judge Harris Hartz. Judge Nancy Moritz dissented.
What Oklahoma’s HB 1775 Actually Prohibits
The law, codified as Okla. Stat. tit. 70, § 24-157, bars public-school employees from requiring or making part of a course any of eight enumerated concepts. Those concepts include the propositions that one race or sex is inherently superior to another, that an individual’s moral character is necessarily determined by race or sex, and that meritocracy or traits such as a hard work ethic are racist or sexist.
A school employee who violates subsection B faces suspension or revocation of their teaching licence or certificate. Wilful violations trigger mandatory proceedings before the State Board of Education.
The eight concepts mirror those listed in Executive Order 13950, signed on 22 September 2020 and titled ‘Combating Race and Sex Stereotyping.’ That order directed federal agency heads to ensure employees and contractors did not teach, advocate, act upon, or promote equivalent divisive concepts in federal workplace training, citing authority under 5 U.S.C. 301, 302, and 4103.
The Court’s Interpretation of the HB 1775 Vagueness Challenge
The majority held that the phrase ‘make part of a course’ most likely means teach as correct principles, or require other teachers to do so. On that reading, a teacher does not violate the statute merely by discussing one of the eight concepts in an historical context, assigning texts that reference them, or facilitating student-initiated discussion.
The court drew a clear line: a teacher who instructs students about the Tulsa Race Massacre remains free to do so. The teacher is prohibited only from adding that a specific racial group is inherently superior or bears collective guilt. As the majority put it, subsection B prohibits ‘proselytizing students to accept certain racist or sexist creeds as truth.’
The court noted that each of the eight concepts is framed in the present tense with specific verbs, meaning a teacher would have to present them as current fact to cross the statutory line. Accidental violations are therefore, in the majority’s view, practically impossible.
\p>The plaintiffs, who include the Oklahoma State Conference of the NAACP, American Indian Movement Indian Territory, and several named individuals, had argued that the statute chilled instruction on historical events and social theory. The majority rejected that reading as inconsistent with the statute’s plain text.
One procedural matter the court declined to resolve was the challengers’ First Amendment argument concerning the right to receive information. Because the plaintiffs had not properly appealed the district court’s rejection of that claim, the Tenth Circuit left it undecided.
Before the Tenth Circuit ruled, the Oklahoma Supreme Court had been asked to define key disputed terms. It declined, finding that defining those terms in the abstract would not avoid the need to address the federal constitutional question. The Oklahoma Supreme Court’s decision is reported at 571 P.3d 135, 141 (Okla. 2025).
Dissent: Teaching Is Broader Than Stating Facts
Judge Moritz argued that the majority’s limiting construction does not resolve the statute’s vagueness. Her dissent contended that ‘teaching’ encompasses far more than reciting principles as correct or incorrect: it includes guiding open-ended discussions, responding to student questions, and drawing out the real-world legacies of historical events.
She posed a series of scenarios the majority’s interpretation leaves unresolved. Must a teacher declare that belief in affirmative action or reparations is ‘incorrect’ when a student raises the topic, to avoid having ‘made part of a course’ the concept that one racial group bears responsibility for the past actions of that group? What of a teacher who argues, for purposes of a classroom debate, that meritocracy was once oppressive but is no longer? The dissent found those questions genuinely open.
Judge Moritz observed that every other court to have considered vagueness challenges to similar laws has found them vague, and that tens of thousands of Oklahoma teachers face these interpretive uncertainties on a daily basis with their licences at stake.
As KGOU reported, the ruling allows full enforcement to proceed while the lawsuit continues. Oklahoma Voice noted that the court upheld the law while narrowing its meaning in the process.
Will Flanagan represented the state. Subject to any onward appeal, the majority’s construction now governs how subsection B is applied across Oklahoma’s public schools.
