Black Emergency Response Team v. OConnor

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

BLACK EMERGENCY RESPONSE )

TEAM et al., )

)

Plaintiffs, )

)

v. ) Case No. CIV-21-1022-G

)

GENTNER DRUMMOND, in his official )

capacity as Oklahoma Attorney )

General, et al., )

)

Defendants. )

ORDER OF PRELIMINARY INJUNCTION

Before the Court is Plaintiffs’ Motion for Preliminary Injunction (Doc. No. 27) and

Supplements thereto (Doc. Nos. 79, 83, 100, 168, 169),1 asking the Court to enjoin officials

of the State of Oklahoma and the University of Oklahoma2 from enforcing Oklahoma

1 Plaintiffs are: Black Emergency Response Team; University of Oklahoma Chapter of the

American Association of University Professors; Oklahoma State Conference of the

National Association for the Advancement of Colored People; American Indian Movement

Indian Territory; Precious Lloyd ex rel. S.L.; Anthony Crawford; and Regan Killackey.

2 Defendants are: Genter Drummond, in his official capacity as Oklahoma Attorney

General; Ryan Walters, in his official capacity as Oklahoma Superintendent of Public

Education; Zachary Archer, Donald Burdick, Sarah Lepak, Katie Quebedeaux, and Kendra

Wesson, in their official capacities as members of the Oklahoma State Board of Education;

Kevin Stitt, in his official capacity as Governor of Oklahoma; Jack Sherry, Dennis Casey,

Steven Taylor, Courtney Warmington, P. Mitchell Adwon, Jeffrey Hickman, Dustin

Hilliary, Ken Levit, and Michael Turpen, in their official capacities as the Oklahoma State

Regents for Higher Education (collectively, the “State Defendants”); and John R. “Rick”

Braught, Anita Holloway, Rick Nagel, Robert Ross, Natalie Shirley, and Eric Stevenson in

their official capacities as members of the Board of Regents of the University of Oklahoma

(collectively, the “University Defendants”). All claims against Defendants University of

Oklahoma Board of Regents and Independent School District No. 12 of Oklahoma County,

Oklahoma, have been dismissed pursuant to a separate order of the Court.

House Bill 1775 (“H.B. 1775” or “the Act”) and its implementing regulations. The parties

have submitted additional responses and briefing on the Motion. See Doc. Nos. 58, 60, 61,

66, 90, 91, 96, 97, 146, 148, 158. In addition, on December 4, 2023, the Court heard

argument from counsel. See Doc. No. 160.3

I. BACKGROUND

Governor Kevin Stitt signed Oklahoma House Bill 1775 (“H.B. 1775” or “the Act”)

into law on May 7, 2021. The Act, codified in title 70, section 24-157 of the Oklahoma

Statutes, and its implementing regulations, codified in Oklahoma Administrative Code §

210:10-1-23 (the “Implementing Rules”),4 prohibit the training or teaching of specified

subjects in Oklahoma schools.

With respect to public colleges and universities, the Act directs:

No enrolled student of an institution of higher education within The

Oklahoma State System of Higher Education shall be required to engage in

any form of mandatory gender or sexual diversity training or counseling;

provided, voluntary counseling shall not be prohibited. Any orientation or

requirement that presents any form of race or sex stereotyping or a bias on

the basis of race or sex shall be prohibited.

Okla. Stat. tit. 70, § 24-157(A)(1). The Act directs the Oklahoma State Regents for Higher

Education (the “State Regents”) to promulgate rules to implement the provisions of section

3 Both Plaintiffs and Defendants declined to present any testimony or evidence beyond the

affidavits and documents attached to their various filings.

4 Unless stated otherwise, references herein to the Act encompass the Implementing Rules,

as such rules are authorized in and required by the Act to implement the provisions of the

Act. See Okla. Stat. tit. 70, § 24-157(A)(2), (B)(2).

24-157(A), but they have not yet done so. See id. § 24-157(A)(2); Univ. Defs.’ Mot. to

Dismiss (Doc. No. 51) at 19.

With respect to school districts, charter schools, and virtual charter schools

(collectively, “K-12 Schools”), the Act directs:

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 hard work ethic are racist or sexist or

were created by members of a particular race to oppress members of

another race.

Okla. Stat. tit. 70, § 24-157(B)(1). This prohibition is limited by a clause providing that

“[t]he provisions of this subsection shall not prohibit the teaching of concepts that align to

the Oklahoma Academic Standards.” Id. § 24-157(B). The Oklahoma Academic

Standards (“Academic Standards”) are educational objectives developed by the State

Board of Education and approved by the Oklahoma Legislature reflecting subject matter

standards for public school students in Oklahoma. See id. § 11-103.6(A). Public school

districts are required to develop and implement curriculum based on the Academic

Standards. See id. The Act’s Implementing Rules authorize the State Department of

Education to suspend or revoke the license or certificate of K-12 School employees found

to have violated the Act. See Okla. Admin. Code § 210:10-1-23(j).

II. PLAINTIFFS’ CLAIMS

Plaintiffs bring suit under 42 U.S.C. § 1983, requesting preliminary and permanent

injunctive relief, as well as a declaratory judgment that the Act is unconstitutional facially

and as applied under the First and Fourteenth Amendments to the United States

Constitution. See Am. Compl. (Doc. No. 50) at 76.

Specifically, Plaintiffs contend that:

1. The Act is unconstitutionally vague, facially and as applied by Defendants, in

violation of the Fourteenth Amendment;

2. The Act infringes on the right of students to receive information, facially and as

applied by Defendants, in violation of the First Amendment;

3. The Act is overbroad and imposes impermissible viewpoint-based restrictions,

facially and as applied by Defendants, in violation of the First Amendment;

and

4. The Act violates the Equal Protection Clause of the Fourteenth Amendment.

See id. ¶¶ 156-189.

III. ANALYSIS

Federal Rule of Civil Procedure 65 sets forth requirements for a district court to

issue a preliminary injunction. See Fed. R. Civ. P. 65(a). “Because a preliminary

injunction is an extraordinary remedy never awarded as of right, the movant must make a

clear and unequivocal showing it is entitled to such relief.” Colorado v. U.S. Env’t Prot.

Agency, 989 F.3d 874, 883 (10th Cir. 2021) (citation and internal quotation marks

omitted). As explained by the Tenth Circuit,

Ordinarily, a movant seeking a preliminary injunction must establish (1)

a substantial likelihood of success on the merits; (2) irreparable injury to the

movant if the injunction is denied; (3) the threatened injury to the movant

outweighs the injury to the party opposing the preliminary injunction; and

(4) the injunction would not be adverse to the public interest.

Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 269 F.3d 1149, 1154 (10th Cir.

2001).

“[C]ourts disfavor some preliminary injunctions and so require more of the parties

who request them.” Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d 1221, 1232 (10th

Cir. 2019) (internal quotation marks omitted).

Disfavored preliminary injunctions don’t merely preserve the parties’

relative positions pending trial. Instead, a disfavored injunction may exhibit

any of three characteristics: (1) it mandates action (rather than prohibiting it),

(2) it changes the status quo, or (3) it grants all the relief that the moving

party could expect from a trial win. To get a disfavored injunction, the

moving party faces a heavier burden on the likelihood-of-success-on-the-

merits and the balance-of-harms factors: She must make a strong showing

that these tilt in her favor.

Id. (citations and internal quotation marks omitted).

Here, the Court finds that the preliminary relief sought by Plaintiffs is not a

disfavored injunction. First, a preliminary injunction would not disturb the status quo. The

status quo is the last “uncontested” and “peaceable” status between the parties “before the

dispute developed.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005)

(internal quotation marks omitted). In the context of a newly enacted statute challenged

on constitutional grounds, the status quo is the period prior to the statute’s enactment. See

BNSF Ry. Co. v. City of Edmond, No. CIV-19-769-G, 2019 WL 5608680, at *2 n.1 (W.D.

Okla. Oct. 30, 2019). Second, injunctive relief would be prohibitory, rather than

mandatory, because such relief would not “affirmatively require [Defendants] to act in a

particular way.” Schrier, 427 F.3d at 1261 (internal quotation marks omitted). It instead

would only enjoin Defendants from taking action to enforce the Act. Finally, a preliminary

injunction would not irreversibly afford Plaintiffs all the relief they could recover at trial,

because a prohibition on enforcing the Act could be undone at the conclusion of a

determination on the merits. See Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d

1234, 1247-48 (10th Cir. 2001).

A. Likelihood of Success on the Merits

Plaintiffs’ request for preliminary injunctive relief relies upon two arguments. First,

Plaintiffs contend that the Act is impermissibly vague and thereby violates the Fourteenth

Amendment’s guarantee of due process. Second, Plaintiffs contend that the Act infringes

upon the First Amendment rights of educators to speak on certain subjects and the corollary

right of students to hear that speech. See Pls.’ Mot. Prelim. Inj. at 18-28.

1. Plaintiffs’ Fourteenth Amendment Challenge

A vague law violates the Fourteenth Amendment’s guarantee of due process, as

citizens are entitled to know what the law is so they can conform their conduct to it. See

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). And citizens are entitled to laws

of sufficient clarity that they leave no room for capricious enforcement by judges, police,

or other officials. See Sessions v. Dimaya, 584 U.S. 148, 175 (2018) (Gorsuch, J.,

concurring in part) (noting that vague laws “can invite the exercise of arbitrary power . . .

by leaving the people in the dark about what the law demands and allowing prosecutors

and courts to make it up”). This due process guarantee is compromised when a statute

“fails to provide people of ordinary intelligence a reasonable opportunity to understand

what conduct it prohibits” or “authorizes or even encourages arbitrary and discriminatory

enforcement.” StreetMediaGroup, LLC v. Stockinger, 79 F.4th 1243, 1253 (10th Cir. 2023)

(internal quotation marks omitted).

Courts recognize that “we can never expect mathematical certainty from our

language” and, so, some level of inexactness will not offend the guarantee of due process.

Grayned, 408 U.S. at 110; see also Draper v. Healey, 827 F.3d 1, 4 (1st Cir. 2016) (Souter,

J.) (“Because words are rough-hewn tools, not surgically precise instruments, some degree

of inexactitude is acceptable in statutory language.” (alteration, omission, and internal

quotation marks omitted)). “The degree of vagueness that the Constitution tolerates—as

well as the relative importance of fair notice and fair enforcement—depends in part on the

nature of the enactment.” Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S.

489, 498 (1982). Factors considered in “deciding whether a challenged statute provides

fair notice” include “the enactment’s purpose, the harm it attempts to prevent, whether

there is a scienter requirement, and the interpretations of individuals charged with

enforcement.” Jordan v. Pugh, 425 F.3d 820, 825 (10th Cir. 2005).

Importantly here, a law that “threatens to inhibit the exercise of constitutionally

protected rights,” like the right to free speech, will prompt a “stringent vagueness test.”

Vill. of Hoffman Ests., 455 U.S. at 499; see also NAACP v. Button, 371 U.S. 415, 432

(1963) (“[S]tandards of permissible statutory vagueness are strict in the area of free

expression.”). And, while as a general matter “enactments with civil rather than criminal

penalties” have been given “greater tolerance,” civil statutes that impose severe penalties—

such as “strip[ping] persons of their professional licenses and livelihoods”—may warrant

the same high expectation of clarity. Vill. of Hoffman Ests., 455 U.S. at 498-99; Dimaya,

584 U.S. at 184-85 (Gorsuch, J., concurring in part).

To properly evaluate the contention that the Act is unconstitutionally vague, the

Court must consider the meaning of the challenged provisions of the Act. In construing a

state statute, a federal court must remain mindful that “state courts are the final arbiters of

state law.” United States v. DeGasso, 369 F.3d 1139, 1145 (10th Cir. 2004). “Where no

controlling state decision exists, the federal court must attempt to predict what the state’s

highest court would do.” Id. (alteration and internal quotation marks omitted). “[A] state

statute should not be deemed facially invalid unless it is not readily subject to a narrowing

construction by the state courts and its deterrent effect on legitimate expression is both real

and substantial.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975) (citation

omitted). A federal court, however, is “without power to adopt a narrowing construction

of a state statute unless such a construction is reasonable and readily apparent.” Stenberg

v. Carhart, 530 U.S. 914, 944 (2000) (internal quotation marks omitted); see also Okla.

State Conf. of NAACP v. O’Connor, 569 F. Supp. 3d 1145, 1153 (W.D. Okla. 2021)

(declining to “apply[] limitations to the [state] statute that simply do not exist in the text”).

Because Oklahoma laws are severable by default, the Court may strike words from the

statute to save it. See Okla. Stat. tit. 75, § 11a(1); Okla. Corr. Pro. Ass’n, Inc. v.

Doerflinger, 468 F. App’x 916, 917 (10th Cir. 2012). But inserting words in order to

achieve a particular construction “would exceed the power and function of the court, and

would fail to bind state prosecutors, leaving the citizens of [Oklahoma] vulnerable to

prosecutions under the actual language of the statute.” Citizens for Responsible Gov’t State

Pol. Action Comm. v. Davidson, 236 F.3d 1174, 1194-95 (10th Cir. 2000). Stated

differently, the Court “will not rewrite a state law to conform it to constitutional

requirements.” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988).

Because section 24-157(A) and section 24-157(B) impose different restrictions at

different educational levels, the Court considers these provisions separately.5

a. Section 24-157(A)(1): Colleges and Universities

Section 24-157(A)(1) of the Act provides, in relevant part: “No enrolled student . .

. shall be required to engage in any form of mandatory gender or sexual diversity training

5 The Supreme Court has clarified that in a facial challenge for vagueness the plaintiff is

not required to show that the challenged statute is vague in all of its applications. See

or counseling . . . . Any orientation or requirement that presents any form of race or sex

stereotyping or a bias on the basis of race or sex shall be prohibited.” Okla. Stat. tit. 70, §

24-157(A)(1).

1) Prohibition of Mandatory Gender or Sexual Diversity Training

and Counseling

As set forth by separate Order, the Court has determined that Plaintiffs lack standing

to challenge the first sentence of section 24-157(A)(1), which provides that “gender or

sexual diversity training or counseling” must be voluntary rather than mandatory.

Plaintiffs’ claims challenging this provision have been dismissed without prejudice for lack

of subject-matter jurisdiction. Accordingly, no injunctive relief is warranted as to

enforcement of the first sentence of section 24-157(A)(1).

2) Prohibition of Any Requirement or Orientation That Presents

Race or Sex Stereotyping or Bias on the Basis of Race or Sex

Plaintiffs claim that the second sentence of section 24-157(A)(1), which prohibits

“[a]ny orientation or requirement that presents any form of race or sex stereotyping or a

bias on the basis of race or sex,” is impermissibly vague under the Fourteenth Amendment

and, therefore, enforcement of that provision should be enjoined. Defendants respond that

the language of section 24-157(A)(1) is sufficiently clear. Because this aspect of the Act

Johnson v. United States, 576 U.S. 591, 602-03 (2015) (explaining that the Supreme

Court’s holdings “squarely contradict the theory that a vague provision is constitutional

merely because there is some conduct that clearly falls within the provision’s grasp”).

Under Tenth Circuit precedent, such a plaintiff “must show, at a minimum, that the

challenged law would be vague in the vast majority of its applications; that is, that

‘vagueness permeates the text of the law.’” Dr. John’s, Inc. v. City of Roy, 465 F.3d 1150,

1157 (10th Cir. 2006) (alteration an internal quotation marks omitted).

implicates the First Amendment rights of the university level instructor-Plaintiffs, the

Court applies a “stringent vagueness test.” Vill. of Hoffman Estates, 455 U.S. at 499.

When interpreting a statute, “[i]f the words of the statute have a plain and ordinary

meaning, [the Court] appl[ies] the text as written.” Conrad v. Phone Directories Co., 585

F.3d 1376, 1381 (10th Cir. 2009); accord Day v. Great Nw. Ins. Co., 623 F. Supp. 3d 1252,

1255 (W.D. Okla. 2022) (citing Hamilton v. Northfield Ins. Co., 473 P.3d 22, 26 (Okla.

2020)). As discussed in the Court’s Order on Defendants’ motions to dismiss and for

judgment on the pleadings, entered contemporaneously with this Order, the Court construes

the principal terms in the second sentence of section 24-157(A)(1) as follows. Although

the Act does not expressly define “orientation,” the plain and ordinarily understood

meaning of that term is, in this context, a program or course offered by universities and

colleges to provide introductory information to new students.6 The text of the Act includes

no definition or limiting modifier for the term “requirement.” The plain and ordinarily

understood meaning of that term encompasses a broad range of activity7 and would include,

in context, everything from the courses demanded by a university for a degree to the

assignments and readings demanded by a professor for a course. The text of the Act also

includes no definition or limiting modifier for the term “presents.” The plain and ordinarily

6 See Oxford English Dictionary, s.v. “orientation (n.), sense 1.4,” accessible at

https://doi.org/10.1093/OED/5986710372 (2024) (“The process of familiarizing a new or

prospective student, recruit, etc., with the content of a course, the basics of a subject, the

nature of college life, etc. Also: a course intended to provide such familiarization.”).

7 See Oxford English Dictionary, s.v. “requirement (n.), sense 3.b,” accessible at

https://doi.org/10.1093/OED/9723059198 (2024) (“Something called for or demanded; a

condition which must be complied with.”).

understood meaning of that term likewise encompasses a broad range of activity8 and

would include, in context, any situation in which race or sex stereotyping or bias is

deliberately introduced or otherwise discussed. Thus, again as discussed in the

contemporaneous Order, the Court has concluded that an Oklahoma court would construe

section 24-157(A)(1)’s prohibition of “[a]ny orientation or requirement that presents any

form of race or sex stereotyping or a bias on the basis of race or sex” to be a restriction on

curricular speech, specifically here the information a university level instructor-Plaintiff

teaches in any orientation, required course, or course assignment.

Applying these definitions together, the Court further determines that the second

sentence of section 24-157(A)(1) would prohibit a professor from endorsing discriminatory

beliefs during an orientation or course. The ambiguity of the term “presents” means,

however, that the provision also could reasonably be construed to mean that a professor is

prohibited from describing or identifying discriminatory beliefs in an orientation or course.

Likewise, the provision also could reasonably be construed to mean that a professor is

prohibited from discussing or assigning the reading of a work in which the author describes

or identifies discriminatory beliefs—for example, an analysis of how historic beliefs about

race led to the enslavement and subjugation of Black men and women as depicted in Mark

8 See Oxford English Dictionary, s.v. “present (v.), sense 1.7.a,” accessible at

https://doi.org/10.1093/OED/5912943123 (2024) (“To make clear to the mind or thought;

to convey, suggest, or exhibit to mental perception; to put forward for reflection,

consideration, or scrutiny; to set forth, describe.”).

Twain’s Huckleberry Finn or an analysis of how current stereotypes about gender affect

the employment opportunities of women.

Implicitly recognizing this ambiguity, Defendants have differing interpretations of

how to interpret “requirement” in the second sentence of section 24-157(A)(1). The State

Defendants insert the word “similar” to modify “requirement,” so as for the prohibition to

extend to “orientation[s]” “or similar requirements.” State Defs.’ Resp. (Doc. No. 61) at

22. The University Defendants merge “requirement” with “orientation” to create a

prohibition on “required orientations.” Univ. Defs.’ Resp. (Doc. No. 58) at 7-8. The Court

rejects Defendants’ invitation to add limiting modifiers that would implement their

preferred interpretations of section 24-157(A)(1), whether it be to recast the statute as

applying only to a “required orientation” or to orientations and “similar requirements” that

endorse racial or sexual stereotyping or bias. As noted above, a federal court is not

empowered to rewrite a state statute in this manner. See Stenberg, 530 U.S. at 944; see

also Okla. State Conf. of NAACP, 569 F. Supp. 3d at 1153.

The Court concludes that Plaintiffs have made a strong showing that section 24-

157(A)(1)’s prohibition of “[a]ny orientation or requirement that presents any form of race

or sex stereotyping or a bias on the basis of race or sex,” Okla. Stat. tit. 70, § 24-157(A)(1),

is so indefinite “that persons of common intelligence must necessarily guess at its meaning

and differ as to its application.” Kleinsmith v. Shurtleff, 571 F.3d 1033, 1038 (10th Cir.

2009) (alteration and internal quotation marks omitted).

b. Section 24-157(B)(1): K-12 Schools

Plaintiffs likewise claim that section 24-157(B)(1) is void for vagueness in violation

of the Fourteenth Amendment and, therefore, enforcement of that provision should be

enjoined. Defendants respond that the prohibitions of section 24-157(B)(1) are clearly

defined.

As set forth by separate Order, the Court has determined that Plaintiffs’ assertion of

First Amendment protection for the speech regulated by section 24-157(B)(1) is unavailing

because state and local authorities are permitted to regulate the curricular speech of K-12

teachers. While the absence of a free speech interest, and the fact that section 24-157(B)(1)

is a civil statute, might suggest that a greater latitude for vagueness should be allowed, the

Court is not convinced that is so. Considering the relevant factors, see Jordan, 425 F.3d at

825, what is most notable here is that the Act’s Implementing Rules authorize the State

Department of Education to suspend or revoke the license or certificate of K-12 School

employees found to have violated the Act. See Okla. Admin. Code § 210:10-1-23(j).9

Given the severity of potential consequences for K-12 teachers upon a violation of section

24-157(B)(1), the Court applies a stringent vagueness test.10

9 The Implementing Rules impose a scienter requirement for the revocation of teacher

licenses but not for the suspension of teacher licenses. Compare Okla. Admin. Code

210:10-1-23(j)(1) (stating “State Department of Education shall make a determination of

whether to initiate proceedings to suspend the license or certificate of any school employee

who is found to have violated” section 24-157(B)(1)), with id. at 210:10-1-23(j)(2) (stating

“State Board of Education shall initiate proceedings to revoke the license or certificate of

any school employee for ‘willful violation’ of” section 24-157(B)(1)).

10 The Court would reach the same result if a less stringent vagueness test were applied.

1) To Require the Prohibited Concepts

Each prohibition in section 24-157(B)(1) begins with the same introductory verb

clause: “No [school personnel] shall require or make part of a course the following

concepts . . . .” Okla. Stat. tit. 70, § 24-157(B)(1) (emphasis added). Plaintiffs criticize

this introductory directive as, among other things, lacking clarity as to whether it prohibits

personnel from merely addressing the cited concepts. See Pls.’ Mot. Prelim. Inj. at 19.

There are two aspects of section 24-157(B)(1)’s introductory verb clause: to

“require” a prohibited concept and to “make part of a course” a prohibited concept. The

Court agrees with Defendants that when the phrase “make part of a course” is read in

conjunction with the eight prohibited concepts themselves, the plain and ordinarily

understood meaning of section 24-157(B)(1) is to prohibit school personnel from directly

endorsing, promoting, or inculcating any concept as a normative value.

The same cannot be said of the term “require” as used in section 24-157(B)(1). As

a threshold matter, the phrase presents an illogical mismatch between verb and object. It

would be logical and fall within normal usage to say that a concept—that is, an idea or a

notion—may be taught, or for that matter to say that a concept may not be required—i.e.,

ordered or made compulsory—to be taught. But to generally direct that a concept may not

be required opens the statute to a variety of interpretations.

The State Defendants urge the Court to fix this mismatch by interpreting section 24-

157(B)(1)’s “require . . . the . . . concepts” to mean that no school personnel shall “teach

the specified concepts as being true.” Okla. Stat. tit. 70, § 24-157(B)(1); Tr. Mot. Hr’g

47:14-16 (Doc. No. 162); see also State Defs.’ Resp. at 24-25. But, again, a federal court

is not empowered to rewrite a state statute by adding such modifiers. See Stenberg, 530

U.S. at 944; Okla. State Conf. of NAACP, 569 F. Supp. 3d at 1153. Considering the plain

text of the statute, and giving each word its ordinary meaning, the Court concludes that

Plaintiffs have sufficiently shown that section 24-157(B)(1) is unconstitutionally vague as

to the term “require” in the introductory verb clause.

2) To Make the Prohibited Concepts Part of a Course

As to the second aspect of the introductory verb clause, and the eight prohibited

concepts in subsections 24-157(B)(1)(a) through (h), the Court finds that the resulting

directives are—with two exceptions—sufficiently clear to give ordinary people fair notice

of the conduct prohibited thereby and, further, are not so standardless as to invite arbitrary

enforcement. The Court emphasizes that, in so finding, it has construed the directives in

subsections 24-157(B)(1)(a) through (h) as narrow in scope in light of both the plain text

of the statute itself and the statute’s express incorporation of the Academic Standards as a

“safe harbor” such that teaching any concepts that “align with” an Academic Standard is

permitted under the Act.

a. “No [school personnel] shall . . . make part of a course the . .

. concept[]: . . . one race or sex is inherently superior to

another race or sex . . . .”

The directive in subsection (a) is sufficiently clear to satisfy the due process

requirement of the Fourteenth Amendment. The text prohibits teaching that any single race

is of higher value than another race or that any sex is of higher value than another sex.11

Contrary to Plaintiffs’ arguments, this provision does not reasonably prohibit teaching

about how mistaken beliefs about the superiority of one race or sex have existed in history,

how such beliefs exist now, or how those beliefs have affected or currently affect the

actions of people or institutions.

b. “No [school personnel] shall . . . make part of a course the . .

. concept[]: . . . an individual, by virtue of his or her race or

sex, is inherently racist, sexist or oppressive, whether

consciously or unconsciously . . . .”

The directive in subsection (b) is likewise sufficiently clear to satisfy the due process

requirement of the Fourteenth Amendment. The text prohibits teaching that a person,

simply as a result of belonging to any particular race or sex, has the characteristic of being

prejudiced against other persons because of their belonging to a different race or sex, or

the characteristic of keeping others in subjection or hardship because of their belonging to

a different race or sex.12 Contrary to Plaintiffs’ arguments, this text does not reasonably

11 See Oxford English Dictionary, s.v. “superior (adj.), sense II.7.a,” accessible at

https://doi.org/10.1093/OED/3488245575 (2024) (“Higher in notional or abstract rank, or

in a scale or series; of a higher or better nature or character.”).

12 See Oxford English Dictionary, s.v. “racist (adj.),” accessible at

https://doi.org/10.1093/OED/1166463562 (2024) (“Prejudiced, antagonistic, or

discriminatory towards a person or people on the basis of their membership of a particular

racial or ethnic group, typically one that is a minority or marginalized; expressing or

characterized by racism.”); id., s.v. “sexist (adj.),” accessible at

https://doi.org/10.1093/OED/3045936212 (2024) (“Of, relating to, or characteristic of

sexism or sexists; that advocates or practi[c]es sexism, esp. against women.”); id., s.v.

“sexism (n.2),” accessible at https://doi.org/10.1093/OED/3048626588 (2024)

(“[P]rejudice, stereotyping, or discrimination, typically against women, on the basis of

sex”); id., s.v. “oppressive (adj.), sense 2.b,” accessible at

https://doi.org/10.1093/OED/6548577607 (2024) (“Of a person, social group, government,

etc.: that oppresses (oppress v. 3a); characterized by or disposed to such oppression;

prohibit teaching that an action by a person or an institution is racist or sexist or results in

undue oppression, or that inaction by a person or an institution in the face of racism or

sexism is itself racist or sexist. And the text does not prohibit teaching that an institution

or a policy that contributes to or perpetuates a preference for one race over another is racist,

or that an institution or a policy that contributes to or perpetuates a preference for one sex

over another is sexist.

c. “No [school personnel] shall . . . make part of a course the . .

. concept[]: . . . an individual should be discriminated against

or receive adverse treatment solely or partly because of his or

her race or sex . . . .”

-and-

d. “No [school personnel] shall . . . make part of a course the . .

. concept[]: . . . members of one race or sex cannot and should

not attempt to treat others without respect to race or sex . . . .”

The Court will discuss subsections (c) and (d) together. Subsection (c) prohibits

making part of a course that it is acceptable for a person to “receive adverse treatment” due

to that person’s race or sex. Okla. Stat. tit. 70, § 24-157(B)(1)(c). Subsection (d) prohibits

making part of a course that it is unacceptable for a person to “attempt to treat others

without respect to race or sex.” Id. § 24-157(B)(1)(d). Thus, the construction of both

provisions depends in part on the meaning of the words “treat” and relatedly “treatment.”

tyrannical.”); id., s.v. “oppress (v.), sense 3.a,” accessible at

https://doi.org/10.1093/OED/1037181714 (2024) (“To keep (a person or group of people,

esp. a minority or other subordinate group) in subjection and hardship by the unjust

exercise of authority, power, or strength; to exploit; to tyrannize over.”).

The term “treat” is not defined in the Act and the use of that term has not been

addressed by any Oklahoma court, either as to the Act generally or as to subsections (c)

and (d) specifically. As used, “treat” is not subject to any modifier beyond subsection

(c)’s—but not subsection (d)’s—specification that the treatment be “adverse.”

Mindful of a federal court’s limited capacity in construing a state statute, the Court

must evaluate subsections (c) and (d) based on the ordinary meaning of the word “treat,”

which is expansive in scope.13 The prohibitions in these subsections are not limited to the

subjects of employment and admissions; indeed, the plain language of the prohibitions

extends across every social, political, historical, and religious context. Accordingly, the

text of subsection (c) would prohibit teaching that it is ever proper to draw distinctions

based on race or sex if they favor one group over another. So, subsection (c) would prohibit

a teacher from endorsing widely rejected ideas (e.g., that it is acceptable to restrict access

to public accommodations based on race), which appears likely to have been the intended

result. But subsection (c) would also—on its face—prohibit a teacher from making part of

a course ideas that are subjects of current political debate (e.g., whether it is permissible to

consider race or sex in college admissions or through an affirmative action hiring plan) or

ideas that are accepted by a significant number of people and are reflected in current law

(e.g., that men but not women should be subject to military conscription). In some

instances, that type of broad scope might be merely broad and not also ambiguous, but here

13 See Oxford English Dictionary, s.v. “treat (v.), sense 7.a,” accessible at

https://doi.org/10.1093/OED/5300748815 (2024) (“To deal with, behave or act towards (a

person, animal, etc.) in some specified way; to ‘use’ (well, ill, properly, reverently, etc.).”).

the totality of the Act reflects that these provisions are simply unclear. Considering the

relevant factors, the Court finds that there is a strong likelihood that Plaintiffs will be able

to show that the text of subsection (c) does not provide fair notice to school administrators

and teachers as to what is prohibited by that subsection and what is not and, therefore, that

subsection (c) is impermissibly vague in violation of the Fourteenth Amendment. See

Jordan, 425 F.3d at 825.

Subsection (d) suffers from similar ambiguity. The wording of this prohibition is

cumbersome. Cf. Honeyfund.com, Inc. v. DeSantis, 622 F. Supp. 3d 1159, 1182 (N.D. Fla.

2022) (describing such a directive as “a rarely seen triple negative, resulting in a cacophony

of confusion”), aff’d sub nom. Honeyfund.com Inc. v. Governor, State of Fla., 94 F.4th

1272 (11th Cir. 2024). The text of subsection (d) would prohibit teaching that it is

impossible or undesirable to “treat” a person of one race in the same way as a person of

another race, or to “treat” a person of one sex in the same way as a person of another sex.

And so, like subsection (c), subsection (d) extends across various contexts and would

prohibit making as part of a course the proposition that it is proper in any circumstance to

draw distinctions based on race or sex. The statute would appear to prohibit a teacher from

endorsing widely rejected ideas (e.g., teaching that children should be judged by the color

of their skin and not the content of their character), endorsing ideas that are subjects of

current political debate (e.g., that facially neutral policies may, due to historical racial or

sexual discrimination, result in disparate impact among races or sexes), and endorsing ideas

that are widely accepted and are reflected in current law (e.g., that separate sports divisions

may be established for boys and girls). Again, upon considering the relevant factors, the

Court finds that there is a strong likelihood that Plaintiffs will be able to show that the text

of subsection (d) does not provide fair notice to school administrators and teachers as to

what is prohibited by that subsection and what is not and, therefore, that subsection (d) is

impermissibly vague in violation of the Fourteenth Amendment. See Jordan, 425 F.3d at

825.

At this preliminary stage, the Court finds that subsections (c) and (d) of section 24-

157(B)(1) are unconstitutionally vague because their scope is so indefinite “that persons of

common intelligence must necessarily guess at [their] meaning and differ as to [their]

application.” Kleinsmith, 571 F.3d at 1038 (alteration and internal quotation marks

omitted).

e. “No [school personnel] shall . . . make part of a course the . .

. concept[]: . . . an individual’s moral character is necessarily

determined by his or her race or sex . . . .”

The directive in subsection (e) is sufficiently clear to satisfy the due process

requirement of the Fourteenth Amendment. The text prohibits teaching that a person is of

a certain moral character due to the person’s race or sex.14 As with subsection (b), the text

does not prohibit teaching that a particular action by a person or institution—including a

failure to recognize racism or sexism and to act to rectify it—is morally wrong.

f. “No [school personnel] shall . . . make part of a course the . .

. concept[]: . . . an individual, by virtue of his or her race or

14 See Oxford English Dictionary, s.v. “character (n.), sense II.9.a,” accessible at

https://doi.org/10.1093/OED/4055170406 (2024) (“The sum of the moral and mental

qualities which distinguish an individual or a people, viewed as a homogeneous whole; a

person’s or group’s individuality deriving from environment, culture, experience, etc.;

mental or moral constitution, personality.”).

sex, bears responsibility for actions committed in the past by

other members of the same race or sex . . . .”

The directive in subsection (f) is sufficiently clear to satisfy the due process

requirement of the Fourteenth Amendment. The text prohibits teaching that a person is

responsible for the past actions of another person simply because they share a common

race or sex. See Okla. Stat. tit. 70, § 24-157(B)(1)(f). Contrary to Plaintiffs’ arguments,

the text does not prohibit teaching about historical or current events in which members of

one race or sex acted criminally, maliciously, or discriminatorily toward members of

another race or sex. Nor does it reasonably preclude teaching that past actions of racism

or sexism have resulted in present advantages for members of a certain race or sex or have

resulted in present disadvantages for members of a certain race or sex.

g. “No [school personnel] shall . . . make part of a course the . .

. concept[]: . . . any individual should feel discomfort, guilt,

anguish or any other form of psychological distress on account

of his or her race or sex . . . .”

The directive in subsection (g) is sufficiently clear to satisfy the due process

requirement of the Fourteenth Amendment. The text prohibits making part of a course the

concept that a person should feel discomfort, guilt, anguish, or distress because of the

person’s race or sex.15 As with subsection (f), the text of subsection (g) does not prohibit

teaching about historical or current events in which members of one race or sex acted

15 See Oxford English Dictionary, s.v. “‘on account of’ in account (n.), sense P.1.d.iii.i,”

accessible at https://doi.org/10.1093/OED/1255070184 (2024) (“For the sake of, in

consideration of; by reason of, because of.”).

criminally, maliciously, or discriminatorily—or that past actions of racism or sexism have

resulted in present advantages or disadvantages for members of a certain race or sex.

Notably, contrary to Plaintiffs’ concerns, the text of subsection (g) does not prohibit

the teaching of subjects involving race or sex merely because they might cause a student

to feel discomfort or distress. Take as an example a student who is discomfited upon

learning about a historical event in which persons of her race harmed persons of another

race. That student’s reaction to the facts of the event would not, absent more, mean that a

teacher impermissibly taught that the student “should feel discomfort . . . on account of . .

. her race.” Id. § 24-157(B)(1)(g) (emphasis added). Any reaction by the student would

instead be due to historical fact: e.g., the cruelty of the acts at issue and the harm that was

experienced because of those acts. In other words, while a teacher may and should teach

about events that make students uncomfortable, such coursework is distinct from teaching

students that their race or sex should itself be a cause for discomfort or shame. The Court

construes the text of subsection (g) as prohibiting the latter conduct, not the former.

h. “No [school personnel] shall . . . make part of a course the . .

. concept[]: . . . 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.”

The directive in subsection (h) prohibits teaching that a meritocratic system or

characteristics such as a strong work ethic are in and of themselves racist or sexist or were

devised to keep members of another race or sex in subjection or hardship.16 Whatever

16 See Oxford English Dictionary, s.v. “oppress (v.), sense 3.a,” accessible at

https://doi.org/10.1093/OED/1037181714 (2024) (“To keep (a person or group of people,

might be said about the necessity of this prohibition, the Court finds that the text is

sufficiently clear to satisfy the due process requirement of the Fourteenth Amendment.

i. The Oklahoma Academic Standards as a Safe Harbor

Further, the safe harbor of the Academic Standards limits the scope of each of the

directives set forth above, expressly protecting the teaching of “concepts that align to”

listed topics that include, and reasonably require discussion of, past and present race and

sex discrimination. See id. § 24-157(B) (prescribing that “[t]he provisions of this

subsection shall not prohibit the teaching of concepts that align to the Oklahoma Academic

Standards”). These subjects include historical events and ideas: slavery in America and its

political and economic consequences;17 the ratification of the Constitution and the

founders’ treatment of enslaved persons and all women;18 the colonization of tribal lands

and the United States’ subsequent interactions with American Indians,19 including policies

of conquest and forcible removal of tribes and attempted assimilation;20 the women’s

suffrage movement;21 the role of slavery “as the principal cause of increased sectional

esp. a minority or other subordinate group) in subjection and hardship by the unjust

exercise of authority, power, or strength; to exploit; to tyrannize over.”).

17 See 2019 Oklahoma Academic Standards for Social Studies at 5.1.5, 5.2.8, 5.4.2, 8.3.3,

8.9, WH.2.4, available at https://sde.ok.gov/oklahoma-academic-standards (last updated

Oct. 11, 2023).

18 See id. at 8.3.3, 8.12.2.

19 See id. at 3.2.2, 3.3.8, 4.3.1, 5.2.6, 8.3.4, 8.8.4, OKH.2.3, OKH.2.4, OKH.3.1.

20 See id. at 3.2.2, 3.3.8, 8.4.2, 8.7.3, 8.12.5, OKH.2.3, OKH.2.4, OKH.3, OKH.5.1,

USH.1.3.

21 See id. at 8.2.2, 8.9.5, USH.2.1, USH.2.3.

polarization leading to the Civil War”;22 the Reconstruction Era and adoption of the

Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution;23 civil rights

struggles in America, including Black Codes and Jim Crow Laws;24 the founding of

Oklahoma and the effect of federal policies on American Indians during early statehood;25

the disenfranchisement of minorities and racial tensions in twentieth-century America

(expressly including the “Tulsa Race Riot”26 and the internment of Japanese-Americans

during World War II27);28 and the “major events, personalities, tactics[,] and effects of the

Civil Rights Movement.”29 The protected topics also include the effects of past bias and

discrimination on current behavior30 and “ongoing issues including immigration, criminal

justice reform, employment, environmental issues, race relations, civic engagement, and

education.”31

These standards largely if not entirely embrace the topics identified by Plaintiffs as

potentially affected by subsections (a), (b), (e), (f), (g), and (h) of the Act. As to subsections

22 Id. at 8.10, 8.11.

23 See id. at 8.12.

24 See id. at 8.9.3, 8.12.2, 8.12.3, 8.12.4, USH.1.2.

25 See id. at OKH.4, OKH.5.1.

26 See id. at OKH.5.2, USH.4.1.

27 See id. at USH.5.1.

28 See id. at USH.2.1.G, USH.4.1.B.

29 Id. at OKH.6.1, USH.7.1.

30 See id. at PS.7.2 (“Explain how bias, discrimination and use of stereotypes influence

behavior with regard to gender, race, sexual orientation and ethnicity . . . .”).

31 Id. at OKH.6.9; see also id. at OKH.6.5, USH.7.2, USH.9.3.

(c) and (d) of the Act, however, the Court finds that even the broad reach of the Academic

Standards does not fully mitigate the vagueness of those directives. The broad scope of

the terms “treat” and “treatment” in subsections (c) and (d) implicates concepts beyond

those listed in, or that reasonably “align to,” the Academic Standards.

c. Conclusion

The Court’s role here is not to assess whether the Act is needed or wise but to

evaluate whether its language is so vague that the Act “fails to provide people of ordinary

intelligence a reasonable opportunity to understand what conduct it prohibits” or

“authorizes or even encourages arbitrary and discriminatory enforcement.”

StreetMediaGroup, 79 F.4th at 1253 (internal quotation marks omitted). As set forth

above, the Court finds that Plaintiffs have established a substantial likelihood of success

on the merits insofar as (1) their claim that section 24-157(A)(1)’s prohibition of “[a]ny

orientation or requirement that presents any form of race or sex stereotyping or a bias on

the basis of race or sex” is impermissibly vague in violation of the Fourteenth Amendment;

and (2) their claim that section 24-157(B)(1) is impermissibly vague in violation of the

Fourteenth Amendment, as to the use of the introductory verb clause term “require,” and

with respect to subsections (c) and (d) in their entirety. Okla. Stat. tit. 70, § 24-157(A)(1),

(B)(1).32

32Although the Act lacks a severability clause, Oklahoma law presumes statutes are

severable absent a finding that the valid provisions “are so essentially and inseparably

connected with” the void provisions that “the court cannot presume the Legislature would

have enacted the remaining valid provisions without the void one[s]” or that the remaining

valid provisions “standing alone, are incomplete and are incapable of being executed in

accordance with the legislative intent.” Okla. Stat. tit. 75, § 11a(1). The Court finds that

2. Plaintiffs’ First Amendment Challenge

Plaintiffs also contend that a preliminary injunction should issue because the Act

infringes upon the rights of educators to teach certain information and the corollary right

of students to hear that information. See Pls.’ Mot. Prelim. Inj. at 22-28.

With respect to section 24-157(A)(1) of the Act, which applies to public universities

and colleges, the Court has determined—as set forth by separate Order—that Plaintiffs lack

standing to challenge the first sentence of that provision, and—as set forth above—that

Plaintiffs have made a strong showing that the second sentence of that provision is

unconstitutionally vague. Therefore, the Court need not reach Plaintiffs’ First Amendment

challenge to section 24-157(A)(1).

With respect to section 24-157(B)(1) of the Act, which restricts what K-12 School

personnel in Oklahoma may make part of a course, the Court has determined—as set forth

by separate Order—that Plaintiffs’ claims based on the First Amendment should be

dismissed because Plaintiffs have not shown that section 24-157(B)(1) infringes on their

First Amendment rights. Therefore, no injunction would be appropriate based on

Plaintiffs’ claims challenging section 24-157(B)(1) as violative of the First Amendment.

excising the second sentence from section 24-157(A)(1), “require or” from section 24-

157(B)(1), and subsections (c) and (d) of section 24-157(B)(1) in their entirety, does not

impair the validity of the remainder of those sections or preclude a presumption that the

Legislature would have enacted the remaining provisions without those terms.

B. Irreparable Harm

“A plaintiff suffers irreparable injury when the court would be unable to grant an

effective monetary remedy after a full trial because such damages would be inadequate or

difficult to ascertain.” Dominion Video Satellite, 269 F.3d at 1156. “Any deprivation of

any constitutional right fits that bill.” Free the Nipple-Fort Collins v. City of Fort Collins,

916 F.3d 792, 806 (10th Cir. 2019). Because Plaintiffs have made a strong showing of

likelihood of success on the merits of their Fourteenth Amendment claims to the extent set

forth above, “no further showing of irreparable injury” is required. Id. at 805.

C. Balance of Equities and the Public Interest

The third and fourth preliminary injunction standards—whether “the threatened

injury to the movant outweighs the injury to the party opposing the preliminary injunction”

and whether “the injunction would not be adverse to the public interest,” Dominion Video

Satellite, 269 F.3d at 1154—merge when, as here, the government is opposing the

preliminary injunction. Aposhian v. Barr, 958 F.3d 969, 978 (10th Cir. 2020) (citing Nken

v. Holder, 556 U.S. 418, 435 (2009)). The State Defendants contend that a preliminary

injunction would deprive Oklahomans of a law prescribing a public education “crafted out

of the state’s democratic process and policy judgments.” State Defs.’ Resp. at 30. But the

State has no legitimate interest in enforcing a law determined to be unconstitutionally

vague. See Free the Nipple-Fort Collins, 916 F.3d at 807 (“[I]t’s always in the public

interest to prevent the violation of a party’s constitutional rights.” (internal quotation marks

omitted)); Planned Parenthood of Ark. & E. Okla. v. Cline, 910 F. Supp. 2d 1300, 1308

(W.D. Okla. 2012) (“The public has an interest in constitutional rights being upheld and in

unconstitutional decisions by the government being remedied.”). These considerations

weigh in favor of imposition of an injunction.

D. Security

Although no party has addressed the provision of a bond, Federal Rule of Civil

Procedure 65(c) requires the giving of security as a condition precedent to the granting of

a preliminary injunction. “However, the Court has discretion to require only a nominal

bond, or no bond at all,” where, as here, “issues of overriding public concern or important

federal rights are involved.” Entm’t Merchants Ass’n v. Henry, No. CIV-06-675-C, 2006

WL 2927884, at *4 (W.D. Okla. Oct. 11, 2006) (citing Cont’l Oil Co. v. Frontier Ref. Co.,

338 F.2d 780, 782 (10th Cir. 1964)). Defendants will suffer no financial harm from an

imposition of preliminary injunctive relief. The security requirement of Rule 65(c) shall

be waived.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for Preliminary Injunction (Doc. No.

27) is GRANTED IN PART and DENIED IN PART, as follows:

Defendants herein, their officers, agents, servants, employees, and attorneys, and

persons who are in active concert or participation with those individuals, are hereby

ENJOINED from enforcing, until such time as a final decision is issued on the merits of

this case:

 the provision: “Any orientation or requirement that presents any form of race

or sex stereotyping or a bias on the basis of race or sex is prohibited.” Okla.

Stat. tit. 70, § 24-157(A)(1);

e the word “require” in the introductory verb clause in title 70, section 24-

157(B)(1) of the Oklahoma Statutes;

e subsections (c) and (d) of title 70, section 24-157(B)(1) of the Oklahoma

Statutes, in their entireties; or

e the Implementing Rules, to the extent they are inconsistent with this Order.

IT IS SO ORDERED this 14th day of June, 2024.

CHARLES B. GOODWIN

United States District Judge

30