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

Now before the Court are motions to dismiss and for judgment on the pleadings

submitted by the various defendants. Following full briefing on those motions, a hearing,

and submission of supplemental authority and briefing, the Court grants the motions in

part, denies the motions in part, and orders that questions of state law be certified to the

Oklahoma Supreme Court.

I. BACKGROUND

A. The Act

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”),1 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

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,

1 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).

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).

B. Plaintiffs’ Claims

Plaintiffs are the Black Emergency Response Team, the University of Oklahoma

Chapter of the American Association of University Professors (“OU-AAUP”), the

Oklahoma State Conference of the National Association for the Advancement of Colored

People (“NAACP-Oklahoma”), the American Indian Movement Indian Territory, Precious

Lloyd ex rel. S.L., Anthony Crawford, and Regan Killackey. 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.

Defendants comprise several delineated groups. The “University Defendants” are

the University of Oklahoma Board of Regents (the “Board”) and individual members of

the Board sued in their official capacities (John R. “Rick” Braught, Anita Holloway, Rick

Nagel, Robert Ross, Natalie Shirley, and Eric Stevenson, collectively referred to herein as

the “Board Members”).2 The “State Defendants” are Kevin Stitt, in his official capacity as

Governor of Oklahoma; Genter Drummond, in his official capacity as Oklahoma Attorney

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

2 Pursuant to Federal Rule of Civil Procedure 25(d) and the publicly available listing of

current members of the Board, former members Frank Keating, Michael Cawley, and Phil

Albert are hereby terminated as Defendants.

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;3

and 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.4 Defendant Independent

School District No. 12, Oklahoma County, Oklahoma, is herein referred to as “Edmond

Public Schools” or “EPS.”5

C. Defendants’ Motions

The University Defendants have submitted a Motion to Dismiss (Doc. No. 51),

contending that Plaintiffs’ claims against them should be dismissed based upon lack of

3 Pursuant to Federal Rule of Civil Procedure 25(d) and the publicly available listing of

current members of the Oklahoma State Board of Education, former members Trent Smith,

Marla Hill, and Suzanne Reynolds are hereby terminated as Defendants and succeeding

members Zachary Archer and Katie Quebedeaux are added as Defendants.

4 Pursuant to Federal Rule of Civil Procedure 25(d) and the publicly available listing of

current members of the Oklahoma State Regents for Higher Education, former members

Ann Holloway and Joseph Parker Jr. have been terminated as Defendants and succeeding

members P. Mitchell Adwon and Ken Levit are added as Defendants.

5 Plaintiffs initially brought claims against the members of the Edmond Public Schools

Board of Education and EPS Superintendent Angela Grunewald (collectively, the “EPS

Defendants”), in their official capacities. See Am. Compl. ¶¶ 27-28. On March 8, 2022,

Plaintiffs and the EPS Defendants jointly moved to substitute Edmond Public Schools for

the EPS Defendants. See Agreed Mot. to Substitute Parties (Doc. No. 76). The Court,

construing the Agreed Motion as a request to amend the Amended Complaint, granted the

parties’ request and ordered that “[t]he allegations, causes of action, and requests for relief

against [the EPS Defendants] shall be deemed asserted against Independent School District

No. 12, Oklahoma County, Oklahoma.” Order of Aug. 24, 2022 (Doc. No. 80) at 2.

Because the EPS Defendants are no longer parties to this litigation, EPS’ Motion to Dismiss

is denied as moot to the extent it seeks dismissal on the basis of the EPS Defendants being

improper parties. See EPS Mot. to Dismiss (Doc. No. 52) at 5-8.

subject-matter jurisdiction and for failure to state a claim upon which relief may be granted.

See id. at 5, 16; Fed. R. Civ. P. 12(b)(1), (b)(6). Plaintiffs have responded in opposition

(Doc. No. 67). The University Defendants have replied in support of their Motion (Doc.

No. 71).

After filing an Answer (Doc. No. 53), the State Defendants submitted a Motion for

Judgment on the Pleadings (Doc. No. 106), contending that judgment should be entered in

their favor on each of Plaintiffs’ claims against them. See id. at 1; Fed. R. Civ. P. 12(c).

Plaintiffs have responded in opposition (Doc. No. 110), and the State Defendants have

replied (Doc. No. 112).

Defendant EPS has submitted a Motion to Dismiss (Doc. No. 52), contending that

Plaintiffs’ claims against it should be dismissed for failure to state a claim upon which

relief may be granted. See id. at 1; Fed. R. Civ. P. 12(b)(6). Plaintiffs have responded in

opposition (Doc. No. 68). EPS has replied in further support of its Motion (Doc. No. 73).

II. STANDARD OF REVIEW

A. Subject-Matter Jurisdiction

The University Defendants argue that Plaintiffs’ claims against the Board Members

should be dismissed because Plaintiffs have not shown Article III standing to bring those

claims. See Univ. Defs.’ Mot. to Dismiss at 7-16. This assertion challenges the Court’s

subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil

Procedure. See Murray v. Colorado, 149 F. App’x 772, 774 (10th Cir. 2005).

A Rule 12(b)(1) motion seeking dismissal for lack of subject-matter jurisdiction

takes the form of a facial attack or a factual attack. See Paper, Allied-Indus., Chem. &

Energy Workers Int’l Union v. Cont’l Carbon Co., 428 F.3d 1285, 1292 (10th Cir. 2005).

With a facial attack, such as the one made by the University Defendants, the movant

challenges the sufficiency of the complaint, and the district court must accept all well-

pleaded allegations in the complaint as true. See id.; Smith v. United States, 561 F.3d 1090,

1097 (10th Cir. 2009).

B. Failure to State a Claim

The University Defendants and Defendant EPS argue, pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure, that Plaintiffs’ allegations are in various respects

insufficient to plausibly state a claim upon which relief can be granted. In analyzing a Rule

12(b)(6) motion, the Court “accept[s] as true all well-pleaded factual allegations in a

complaint and view[s] these allegations in the light most favorable to the plaintiff[s].”

Smith, 561 F.3d at 1098. A complaint fails to state a claim on which relief may be granted

when it lacks factual allegations sufficient “to raise a right to relief above the speculative

level on the assumption that all the allegations in the complaint are true (even if doubtful

in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation

omitted). Bare legal conclusions in a complaint are not entitled to the assumption of truth;

“they must be supported by factual allegations” to state a claim for relief. Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009). “The nature and specificity of the allegations required to state

a plausible claim will vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656

F.3d 1210, 1215 (10th Cir. 2011).

C. Judgment on the Pleadings

The State Defendants argue, pursuant to Rule 12(c) of the Federal Rules of Civil

Procedure, that judgment should be entered in their favor on each of Plaintiffs’ claims

because Plaintiffs’ allegations fail to plausibly state a claim. Rule 12(c) permits a party to

move for judgment on the pleadings “[a]fter the pleadings are closed—but early enough

not to delay trial.” Fed. R. Civ. P. 12(c). The Court evaluates the motion under the familiar

standard applied to Rule 12(b)(6) motions. See Atl. Richfield Co. v. Farm Credit Bank of

Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000) (citing Mock v. T.G. & Y. Stores Co., 971

F.2d 522, 528 (10th Cir. 1992)). Accordingly, the Court “accept[s] all facts pleaded by the

non-moving party as true and grant[s] all reasonable inferences from the pleadings in favor

of the same.” Adams v. Jones, 577 F. App’x 778, 782 (10th Cir. 2014) (internal quotation

marks omitted). “[T]o survive judgment on the pleadings, [the plaintiff] must allege ‘a

claim to relief that is plausible on its face.’” Sanchez v. U.S. Dep’t of Energy, 870 F.3d

1185, 1199 (10th Cir. 2017) (quoting Iqbal, 556 U.S. at 678). “To determine whether the

claim to relief is ‘plausible on its face,’ we examine the elements of the particular claim

and review whether the plaintiff has pleaded factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(internal quotation marks omitted).

III. ANALYSIS

A. The University Defendants’ Motion to Dismiss

1. Plaintiffs’ Claims Against the University of Oklahoma Board of Regents

To state a claim for relief under 42 U.S.C. § 1983, “a plaintiff must allege the

violation of a right secured by the Constitution and laws of the United States” and “must

show that the alleged deprivation was committed by a person acting under color of state

law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added). The University Defendants

assert that the Board may not be sued under § 1983 because the Board is not a “person”

but an arm of the State of Oklahoma. See Univ. Defs.’ Mot. to Dismiss at 7-8.6 Plaintiffs

do not object to dismissal, stating the Board is not a named defendant. See Pls.’ Resp. at

5. But see Am. Compl. ¶ 26 (identifying the Board as a defendant).

The Tenth Circuit has long recognized that the Board is an arm of the state for

purposes of the Eleventh Amendment. Hensel v. Off. of Chief Admin. Hearing Officer, 38

F.3d 505, 508 (10th Cir. 1994). And it is well established that “a governmental entity that

is an arm of the state for Eleventh Amendment purposes is not a ‘person’ for section 1983

purposes.” McLaughlin v. Bd. of Trs. of State Colls. of Colo., 215 F.3d 1168, 1172 (10th

Cir. 2000) (internal quotation marks omitted); accord Hartman v. Kickapoo Tribe Gaming

Comm’n, 319 F.3d 1230, 1234 (10th Cir. 2003).

6 Notably, the University Defendants do not seek dismissal on the basis of Eleventh

Amendment immunity.

Accordingly, Plaintiffs’ claims against the Board “fail[] to state a claim against a

person covered by section 1983,” and they shall be dismissed without prejudice. Id.

2. Standing

Next, the University Defendants argue that Plaintiffs lack standing to bring their

claims against the Board Members. See Univ. Defs.’ Mot. to Dismiss at 8-16. “Article III

standing is a jurisdictional requirement for a plaintiff to plead and prove, and a lack of

standing may be challenged by a motion under Rule 12(b)(1).” Altstatt v. Bd. of Cnty.

Comm’rs for Okla. Cnty., No. CIV-22-811-D, 2023 WL 6208550, at *2 (W.D. Okla. Sept.

22, 2023).

To have standing to sue, a plaintiff must properly allege: (1) it “ha[s] suffered an

injury in fact—an invasion of a legally protected interest”—“that is (a) concrete and

particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is

fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to

merely speculative, that the injury will be redressed by a favorable decision.” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted); New

England Health Care Emps. Pension Fund v. Woodruff, 512 F.3d 1283, 1288 (10th Cir.

2008). When there are multiple plaintiffs, “[a]t least one plaintiff must have standing to

seek each form of relief requested in the complaint.” Town of Chester v. Laroe Ests., Inc.,

581 U.S. 433, 439 (2017).

When an organization sues on behalf of its members, the organization has standing

if “(1) at least one of its members would have standing to sue in the member’s own right;

(2) the interest it seeks to protect is germane to its purpose; and (3) neither the claim

asserted nor the relief requested requires the member to participate in the lawsuit.” Speech

First, Inc. v. Shrum, 92 F.4th 947, 949 (10th Cir. 2024) (citing Friends of the Earth v.

Laidlaw, 528 U.S. 167, 181 (2000)). The requirement that one of the organization’s

members have standing may be met even when the qualifying member is not identified by

name. Id. at 949-50.

Even prior to actual enforcement of a statute against a plaintiff, standing may be

established by showing that the plaintiff is suffering “an ongoing injury resulting from the

statute’s chilling effect on his [or her] desire to exercise his [or her] First Amendment

rights.” Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir. 1987). “[A]n injury-in-fact exists

where a chilling effect ‘arises from an objectively justified fear of real consequences, which

can be satisfied by showing a credible threat of prosecution or other consequences

following from the statute’s enforcement.’” Rio Grande Found. v. Oliver, 57 F.4th 1147,

1160 (10th Cir. 2023) (alteration omitted) (quoting D.L.S. v. Utah, 374 F.3d 971, 975 (10th

Cir. 2004)). The Tenth Circuit has found that standing in a suit for prospective relief based

on a chilling effect on speech may be shown through:

(1) evidence that in the past [the plaintiff has] engaged in the type of speech

affected by the challenged government action; (2) affidavits or testimony

stating a present desire, though no specific plans, to engage in such speech;

and (3) a plausible claim that [the plaintiff] presently [has] no intention to do

so because of a credible threat that the statute will be enforced.

Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006); see also

Rio Grande Found., 57 F.4th at 1161 (describing the Walker three-factor framework as

only one “example of circumstances giving rise to standing on a chilled speech claim”).

a. Prohibition of Mandatory Gender or Sexual Diversity Training and

Counseling

The University Defendants contend that Plaintiffs lack standing to challenge the

first sentence of section 24-157(A)(1), which prohibits “mandatory gender or sexual

diversity training or counseling.” Okla. Stat. tit. 70, § 24-157(A)(1). The plain language

of this provision prescribes that public colleges and universities in Oklahoma may continue

to offer voluntary training or counseling regarding gender and sexual diversity, and

Plaintiffs’ allegations establish that the University of Oklahoma (“OU”) in fact has done

so. See id. (“[V]oluntary counseling shall not be prohibited.”); Am. Compl. ¶ 74. At issue,

then, is not whether university level student-Plaintiffs are being denied particular training,

but whether Plaintiffs suffer an actual or imminent harm when such training is not required

of all students at their respective university.

Plaintiffs offer no authority or allegations that would support the proposition that

any of them or of their members has a legally protected interest in which university

trainings and counseling sessions are mandatory as opposed to voluntary. Further, because

making the relevant training and counseling voluntary does not restrict what information

an instructor may teach during the voluntary training or counseling sessions, or what

information a student enrolled in such sessions may receive, Plaintiffs’ allegations are

insufficient to show standing based on chilled speech or any other concrete and

particularized consequences implicated by a credible threat of enforcement of the Act.

As a result, the Court concludes that Plaintiffs have shown no actual or imminent

“injury in fact” from section 24-157(A)(1)’s restriction on mandatory training and

counseling. See Lujan, 504 U.S. at 560. Plaintiffs therefore lack standing to bring claims

challenging this provision as violative of the First or Fourteenth Amendments.7

b. Prohibition of Any Requirement or Orientation That Presents Race or

Sex Stereotyping or Bias on the Basis of Race or Sex

The University Defendants also contend that Plaintiffs lack standing to challenge

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.” Okla. Stat. tit. 70, § 24-157(A)(1).

1) Construction of Statute

As a threshold matter, the University Defendants argue that “from the structure of

[the Act], it is obvious that [section 24-157(A)(1)] applies to trainings and orientations, not

to classroom study or academic research.” Univ. Defs.’ Mot. to Dismiss at 13. As outlined

7 In their Motion for Preliminary Injunction and attached materials, Plaintiffs state that they

fear that the absence of mandatory training and counseling will lead to them being harmed

by students who decline to enroll in the voluntary training and counseling. For example,

Plaintiffs contend that “[n]ow that students are not required to learn about anti-racism and

rape prevention, OU community members . . . face an increased risk of harassment and

prejudice.” Pls.’ Mot. Prelim. Inj. (Doc. No. 27) at 17. Lilly Amechi, on behalf of BERT,

states that, following the cessation of mandatory diversity, equity, and inclusion trainings,

members of BERT are “in fight or flight mode” and avoid talking to others “to reduce the

chances of a racially-motivated or sexual attack.” BERT Decl. ¶ 15, Pls.’ Mot. Prelim. Inj.

Ex. 3 (Doc. No. 27-3). Amechi further states that following the end of mandatory sexual

harassment trainings, OU’s Gender and Equality Center “has already seen an increase in

sexual assaults reported as compared to the same time frame in years prior.” Id. ¶ 13. Even

if such assertions were to be considered in evaluating Plaintiffs’ standing to challenge

section 24-157(A)(1)’s prohibition on mandatory training and counseling, they are too

speculative to plausibly allege an actual or imminent “injury in fact” or that such injury

would be fairly traceable to the actions of Defendants.

below, the Court disagrees and concludes that the provision, based on its plain language,

applies to and restricts curricular speech.

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 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) (noting that a court will uphold a statute only if it is “readily susceptible” “to a

narrowing construction that would make it constitutional”).

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)). Although the Act does not expressly define “orientation,” the plain and ordinarily

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

and colleges to provide introductory information to new students.8 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 activity9 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 understood meaning of that term likewise encompasses a broad range of

activity10 and would include, in context, any situation in which race or sex stereotyping or

bias is deliberately introduced or otherwise discussed.

8 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.”).

9 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.”).

10 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.”).

Applying these definitions, the Court concludes 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” as a

restriction on curricular speech, specifically here the information a university level

instructor-Plaintiff teaches in any orientation, required course, or course assignment.

2) Injury in Fact

The parties do not dispute that the curricular speech of the university level

instructor-Plaintiffs is protected to some extent by the First Amendment. See Miles v.

Denver Pub. Schs., 944 F.2d 773, 779 (10th Cir. 1991) (contrasting First Amendment

protections afforded university professors and K-12 public school teachers).11

Accordingly, Plaintiffs correctly contend that they may establish standing to challenge

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” by adequately alleging

that the prospect of enforcement of that provision has had a chilling effect on these

Plaintiffs’ exercise of their First Amendment rights. Okla. Stat tit. 70, § 24-157(A)(1).

11 For purposes of analyzing standing, or the instant motions to dismiss and for judgment

on the pleadings, the Court need not decide the extent that the First Amendment protects

the curricular speech of university professors and instructors or whether it is properly

assessed under Garcetti v. Ceballos, 547 U.S. 410 (2006), Pickering v. Board of Education

of Township High School District 205, 391 U.S. 563 (1968), or some other test. It is

sufficient to determine that the second sentence of section 24-157(A)(1) regulates the

curricular speech of university level instructor-Plaintiffs and that at least some of the

regulated speech is protected by the First Amendment.

Again, standing based on chilled speech may be established through a showing that:

(1) the plaintiff “in the past. . . engaged in the type of speech affected by the challenged

government action”; (2) the plaintiff has “a present desire. . . to engage in such speech”;

and (3) there is “a plausible claim that [the plaintiff] presently [has] no intention to do so

because of a credible threat that the statute will be enforced.” Walker, 450 F.3d at 1089

(emphasis omitted). Here, Plaintiffs have alleged that one OU instructor has altered

classroom instruction upon the direction of an OU administrator. See Am. Compl. ¶ 14

(Plaintiff OU-AAUP stating that one of its members was instructed to cease testing students

on critical race theory by a department head in light of the Act). Additionally, Plaintiffs

have alleged that instructors have altered their classroom instruction out of fear of adverse

enforcement action. See id. ¶ 75. These allegations are sufficient at this stage to

demonstrate an injury in fact for Plaintiffs’ constitutional claims.

3) Traceability and Redressability

Plaintiffs suing public officials under Ex parte Young can satisfy the traceability and

redressability requirements by demonstrating “a meaningful nexus” between the

defendants and the alleged injury. Kitchen v. Herbert, 755 F.3d 1193, 1201 (10th Cir.

2014). In other words, the defendant-officials “must ‘have some connection with the

enforcement’ of a challenged statute.” Id. (quoting Ex parte Young, 209 U.S. 123, 157

(1908)). “An officer need not have a special connection to the allegedly unconstitutional

statute; rather, he need only have a particular duty to enforce the statute in question and a

demonstrated willingness to exercise that duty.” Id. (internal quotation marks omitted).

An official’s responsibility for the general supervision over others’ administration of a

challenged law is sufficient, even if the official is powerless to change the state law. See

id. at 1204; Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir.

2007) (rejecting argument that state officials were not proper defendants because they

could not change state law to remedy plaintiff’s concerns but could only enforce the law

as written). “So long as there is such a connection, it is not necessary that the officer’s

enforcement duties be noted in the act.” Finstuen v. Crutcher, 496 F.3d 1139, 1151 (10th

Cir. 2007) (internal quotation marks omitted).

Applying these standards, the Court finds that the Board Members’ general

responsibility to enforce the laws pertaining to the University of Oklahoma makes them

proper defendants in this lawsuit. Although section 24-157(A)(1) has no express

enforcement mechanism, the Board is responsible for the “supervision, management and

control of [OU] and all its integral parts.” Okla. Stat. tit. 70, § 3305.12 This includes the

powers to “[a]dopt such rules and regulations as it deems necessary to govern [OU]” and

to “[d]o all things necessary and convenient to carry out the powers expressly granted to

[the Board] by the Constitution and the laws of the state.” Id. § 3305(a), (o). For these

reasons, the Board Members have a sufficient connection to the enforcement of the Act to

satisfy the traceability and redressability components of standing.

12 Although the State Regents have not yet promulgated implementing rules pursuant to

section 24-157(A)(2), the University Defendants have pointed to no authority suggesting

that this statute lacks independent legal force. See generally Prairie Band Potawatomi

Nation, 476 F.3d at 828 n.16 (“We are similarly unimpressed with Defendants’ circular

argument that [a statutory provision] is ‘unenforceable’ because the statute does not contain

any specific language stating how it is to be enforced.”).

4) Conclusion

As described above, Plaintiffs’ allegations are sufficient to show an injury in fact

that is traceable to the University Defendants and redressable through Plaintiffs’ claims

against those Defendants. The Court determines that Plaintiffs have standing to challenge

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.”

3. Failure to State a Claim

The University Defendants further argue that Plaintiffs’ claims against the Board

Members are meritless because the Oklahoma Constitution reserves to the Board of

Regents the authority to “control academic speech or study” at the University of Oklahoma

and, therefore, any aspect of section 24-157(A)(1) that restricts curricular speech is a

nullity. See Univ. Defs.’ Mot. to Dismiss at 13; see also Univ. Defs.’ Resp. to Pls.’ Mot.

Prelim. Inj. (Doc. No. 58) at 9 (“Should it be determined that the text and context of the

statute itself is not sufficiently clear, it should be noted that the legislature is without

authority to dictate academic content to the OU Regents.”). Indeed, the University

Defendants contend that, to the extent they are enforcing the Act, they are doing so “out of

respect to the legislature” and not because they are bound by the Act. See Tr. Mot. Hr’g

40:17-41:2 (Doc. No. 162).13

13 To the extent the University Defendants argue that this asserted limit on the authority of

the Oklahoma Legislature to control academic speech or study at OU deprives Plaintiffs of

standing, the Court disagrees. As detailed above, Plaintiffs have sufficiently established

standing to challenge the second sentence of section 24-157(A)(1). Any argument that the

The Oklahoma Constitution provides that “[t]he government of the University of

Oklahoma shall be vested in a Board of Regents.” Okla. Const. art. XIII, § 8 (“Article

XIII”). “The term ‘government’ is very broad and necessarily includes the power to pass

all rules and regulations which the Board of Regents considers to be for the benefit of the

health, welfare, morals and education of the students.” Franco v. State ex rel. Bd. of

Regents of Univ. of Okla., 482 P.3d 1, 9 (Okla. Civ. App. 2020) (quoting Pyeatte v. Bd. Of

Regents of Univ. of Okla., 102 F. Supp. 407, 413 (W.D. Okla. 1951)). The Oklahoma

Supreme Court has recognized that the state legislature retains some authority over OU but

has not fully delineated that authority. See Bd. of Regents of Univ. of Okla. v. Baker, 638

P.2d 464, 469 (Okla. 1981) (“While constitutionally assured independence cannot be

equated with complete immunity for legislative regulation, it is unnecessary for us to fully

examine here the nature and extent of legislative regulation applicable to [the] Board.”).

Therefore, although the University Defendants plausibly suggest that section 24-157(A)(1)

may violate Article XIII, they fail to identify any authority that conclusively supports their

contention. Nor is the Court independently aware of any such authority.

At oral argument, the Court, while noting that no party had moved for certification

of a question to the Oklahoma Supreme Court, asked whether certification would be

appropriate. See Tr. Mot. Hr’g 70:10-14.14 Under Oklahoma law, the Oklahoma Supreme

provision is invalid under the Oklahoma Constitution is a question more reasonably

addressed in deciding the merits of that challenge.

14 Plaintiffs indicated their view that certification was unnecessary and requested that the

Court enjoin the Act during the pendency of any certification procedure. See Tr. Mot. Hr’g

70:15-71:19. The State Defendants represented that they would not oppose certification.

Court may answer a question of law certified to it “if the answer may be determinative of

an issue in pending litigation” and “there is no controlling decision of the [Oklahoma]

Supreme Court . . . , constitutional provision, or statute of [Oklahoma].” Okla. Stat. tit. 20,

§ 1602. “The decision to certify rests in the sound discretion of the federal court, and a

federal court may certify a state-law issue sua sponte.” Kan. Jud. Rev. v. Stout, 519 F.3d

1107, 1120 (10th Cir. 2008) (internal quotation marks omitted). The procedure is

appropriately employed only when “the statute is fairly susceptible to a narrowing

construction” and the question is “both unsettled and dispositive.” Stenberg, 530 U.S. at

945 (internal quotation marks omitted); Anaconda Mins. Co. v. Stoller Chem. Co., 990 F.2d

1175, 1177 (10th Cir. 1993); accord Kan. Jud. Review, 519 F.3d at 1119 (“[W]here

statutory interpretation is at issue, the touchstone of our certification inquiry is whether the

state statute is readily susceptible of an interpretation that would avoid or substantially

modify the federal constitutional challenge to the statute.” (internal quotation marks

omitted)). Certification “promotes cooperative judicial federalism” and is consistent with

a federal court’s duty “to avoid passing on the constitutionality of a statute where possible”

and “to avoid considering the Constitutionality of a state statute in the absence of a

controlling interpretation of its meaning and effect by the state courts.” Kan. Jud. Review,

519 F.3d at 1119 (internal quotation marks omitted).

See id. at 73:9-16. The University Defendants then repeated their contention that “to the

extent any enforcement would take place, that would have to be spelled out in rules

promulgated by the state regents,” “[s]o there’s really nothing for this Court to enjoin

against the University of Oklahoma.” Id. at 82:17-25.

Applying these considerations, and in particular noting the public importance of the

subject matter of the Act and the lack of any opportunity for an Oklahoma court to

determine how the Act should be construed and if its scope is limited by article XIII, section

8 of the Oklahoma Constitution, the Court concludes that certification is appropriate. The

Court shall direct the parties to submit proposed questions related to this issue for

certification to the Oklahoma Supreme Court.

Therefore, the Court will reserve ruling on Plaintiffs’ First Amendment claims

challenging the second sentence of section 24-157(A)(1) pending a response from the

Oklahoma Supreme Court. See Kan. Jud. Rev., 519 F.3d at 1122. The University

Defendants’ arguments for dismissal of Plaintiffs’ Fourteenth Amendment claims overlap

with the Rule 12(c) arguments of the State Defendants and are considered below.

B. The State Defendants’ Motion for Judgment on the Pleadings

1. Plaintiffs’ First Amendment Claims

Invoking the First Amendment, Plaintiffs allege that the Act infringes upon the right

of educators to teach certain information and the corollary right of students to receive that

information. See Am. Compl. ¶¶ 164-170, 171-176 (“Right to Receive Information”;

“Overbroad and Viewpoint-Based Restriction on Academic Freedom”). Because section

24-157(A)(1) and section 24-157(B)(1) impose different restrictions at different

educational levels, the Court considers these provisions separately.

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

As noted above, section 24-157(A)(1) of the Act applies to public colleges and

universities. The Court has determined that Plaintiffs lack standing to challenge the first

sentence of that section. Accordingly, Plaintiffs’ claims challenging the first sentence of

section 24-157(A)(1) as violative of the First Amendment shall be dismissed without

prejudice for lack of subject-matter jurisdiction.

The State Defendants argue that the second sentence of section 24-157(A)(1) should

be construed, like the first sentence of that section, as merely restricting what “types of. . .

orientation[s] or similar ‘requirements’” may be made “mandatory.” See State Defs.’ Mot.

JOP at 4 (emphasis omitted). As described above, 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” as a restriction on curricular speech, including the information a university

level instructor-Plaintiff teaches in any orientation, required course, or course assignment.

And, again, the parties do not dispute that the curricular speech of the university level

instructor-Plaintiffs is protected to some extent by the First Amendment. Because the State

Defendants present no other argument as to why judgment should be entered in their favor

on Plaintiffs’ First Amendment claims challenging the second sentence of section 24-

157(A)(1), and Plaintiffs’ allegations present facts that would adequately support such a

claim, the State Defendants’ Motion is, to that extent, denied.

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

The State Defendants argue that Plaintiffs’ First Amendment claims challenging

section 24-157(B)(1) of the Act should be dismissed because that provision only restricts

the curricular speech of K-12 teachers, and such speech is not protected by the First

Amendment. See State Defs.’ Mot. JOP at 3.

The Supreme Court has recognized that state and local authorities have wide latitude

to craft their own curricula in a way that “transmit[s] community values,” as “public

schools are vitally important . . . vehicles for inculcating fundamental values necessary to

the maintenance of a democratic political system.” Bd. of Educ., Island Trees Union Free

Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982) (internal quotation marks omitted). In

Garcetti v. Ceballos, the Supreme Court addressed the free speech rights of public

employees, holding that while the First Amendment does not protect the speech of public

employees made “pursuant to their official duties,” it does in some circumstances protect

speech of public employees made as private citizens on matters of public concern.

Garcetti, 547 U.S. at 419-21 (holding that even when speaking on a manner of public

concern, a public employee is subject to “those speech restrictions that are necessary for

their employers to operate efficiently and effectively”); see also Brammer-Hoelter v. Twin

Peaks Charter Acad., 492 F.3d 1192, 1202-03 (10th Cir. 2007) (outlining

“Garcetti/Pickering analysis”). In Garcetti, the Supreme Court explicitly refrained from

deciding whether its analysis “would apply in the same manner to a case involving speech

related to scholarship or teaching,” noting that “[t]here is some argument that expression

related to academic scholarship or classroom instruction implicates additional

constitutional interests.” Garcetti, 547 U.S. at 425.15

The Tenth Circuit has applied Garcetti in considering whether the First Amendment

protected a range of outside-the-classroom statements by teachers alleging they were

terminated in retaliation for exercising their freedom of speech. See Brammer-Hoelter,

492 F.3d at 1202-08. The appeals court held that statements by the teachers “made

pursuant to their duties as teachers”—including execution of the school’s curriculum and

use of “an effective pedagogy”—was speech “made pursuant to [the teachers’] official

duties and could be freely regulated by the” school. Id. at 1204; see also id. at 1204 n.7.

The same principle would mean that curricular speech of the kind regulated by section 24-

157(B)(1) is not protected by the First Amendment. Other courts have expressly held that

15 That question has not yet been conclusively answered. In a pre-Garcetti case, the Tenth

Circuit applied the test for restrictions on school-sponsored student speech set forth in

Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 267 (1988), to restrictions on

classroom expression by teachers. See Miles v. Denver Pub. Schs., 944 F.2d 773, 776 (10th

Cir. 1991). Under that test, curricular speech—defined in Hazelwood to include “school-

sponsored publications, theatrical productions, and other expressive activities that students,

parents, and members of the public might reasonably perceive to bear the imprimatur of

the school” “so long as they are supervised by faculty members and designed to impart

particular knowledge or skills to student participants and audiences,” Hazelwood, 484 U.S.

at 271—may be regulated by a school so long as the regulation serves a legitimate

pedagogical purpose. See Miles, 944 F.2d at 778-79. Another court has invoked

Hazelwood as a means of determining whether particular statements by a teacher qualify

under Garcetti as protected private speech on a matter of public concern. See Lee v. York

Cnty. Sch. Div., 484 F.3d 687, 694 n.11, 700 (4th Cir. 2007) (finding that statements of

curricular speech were not speech on a matter of public concern and were not protected by

the First Amendment). Even if this broader test were applied, it is plain that the in-class

instructional speech of K-12 Schools and teachers regulated by section 24-157(B)(1) is not

protected by the First Amendment.

in-class instructional speech by K-12 level teachers is not protected by the First

Amendment. See Evans-Marshall v. Bd. of Ed. of Tipp City Exempted Vill. Sch. Dist., 624

F.3d 332, 342 (6th Cir. 2010) (“[T]he First Amendment does not protect primary and

secondary school teachers’ in-class curricular speech.”); Mayer v. Monroe Cnty. Cmty. Sch.

Corp., 474 F.3d 477, 479-80 (7th Cir. 2007); Johnson v. Poway Unified Sch. Dist., 658

F.3d 954, 966-70 (9th Cir. 2011).

The Court agrees with the State Defendants that section 24-157(B)(1) is directed to

the curricular speech of K-12 teachers in Oklahoma and that, in accordance with the

authority set forth above, such curricular speech is not protected by the First Amendment.

Accordingly, the Court finds that Plaintiffs’ allegations do not plausibly support their

claims that section 24-157(B)(1), either facially or as applied, violates the First

Amendment.16 The State Defendants’ Motion is, to that extent, granted.

2. Plaintiffs’ Fourteenth Amendment Due Process Claims

The State Defendants argue in relevant part that Plaintiffs have not plausibly alleged

that the Act—excepting the first sentence of section 24-157(A)(1), as to which Plaintiffs

lack standing—is vague in violation of the Fourteenth Amendment. See State Defs.’ Mot.

16 The right to receive information is a corollary of the speaker’s right to express it. See

Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26, 457 U.S. at 867 (“[The right to

receive information and ideas] is an inherent corollary of the rights of free speech and press

that are explicitly guaranteed by the Constitution . . . .”); Stanley v. Georgia, 394 U.S. 557,

564 (1969); Doe v. City of Albuquerque, 667 F.3d 1111, 1118 (10th Cir. 2012). Because

the Court finds no adequately pleaded claim based on a violation of K-12 level instructor-

Plaintiffs’ First Amendment right to teach particular information in the classroom, it

follows that there is no plausible claim for a violation of K-12 level student-Plaintiffs’ right

to receive that information.

JOP at 2. Relying on the text of the Act and, relevant to section 24-157(B), the safe harbor

of the Academic Standards, the State Defendants contend that the Act is sufficiently clear

to afford due process. See id. at 2-3.

As set forth in the Order on Plaintiffs’ Motion for Preliminary Injunction, issued

contemporaneously with this Order, the Court has found 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 to the extent that the

introductory verb clause uses the term “require,” and with respect to subsections (B)(1)(c)

and (B)(1)(d) in their entireties. Okla. Stat. tit. 70, § 24-157(A)(1), (B)(1).

The Court declines, however, to grant dismissal to the University Defendants or

judgment on the pleadings to the State Defendants at this juncture, even as to those aspects

of section 24-157 that the Court has found to be sufficiently clear as to preclude issuance

of injunctive relief. Plaintiffs’ inability to obtain extraordinary relief as to those provisions

does not, standing alone, warrant the entry of judgment against Plaintiffs on those claims.

Moreover, the Court is mindful of its limited role and that no Oklahoma court has had the

opportunity to determine how the Act should be construed. Applying the factors described

above, and noting the public importance of the subject matter of the Act, the Court

concludes that certification of relevant questions as to the Fourteenth Amendment due

process claim to the Oklahoma Supreme Court is appropriate. The Court shall direct the

parties to submit proposed questions related to this issue for certification. Pending a

response, the Court reserves ruling on this aspect of the State Defendants’ Motion. See

Kan. Jud. Rev., 519 F.3d at 1122.

3. Plaintiffs’ Fourteenth Amendment Equal Protection Claims

The Equal Protection Clause of the Fourteenth Amendment provides, “No State

shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S.

Const. amend. XIV, § 1. Plaintiffs assert that Oklahoma’s enactment of the Act violated

the guarantee of equal protection because it was done with a racially discriminatory

purpose. Am. Compl. ¶¶ 177-189. The State Defendants argue that Plaintiffs’ allegations

fail to plausibly establish that the Act was enacted with discriminatory intent. See State

Defs.’ Mot. JOP at 4-9; State Defs.’ Reply (Doc. No. 112) at 10-11.

The Tenth Circuit has recently summarized the two primary types of equal

protection claims:

For typical equal-protection claims, . . . the challenged law facially

discriminates on the basis of some discernible trait. When a distinction

between groups of persons appears on the face of a state law or action, an

intent to discriminate is presumed and no further examination of the

legislative purpose is required. The only questions are (1) what degree of

judicial scrutiny applies to a distinction based on this trait, and (2) whether

the classification at issue withstands such scrutiny. In other cases the

challenged government action does not explicitly or overtly treat the

plaintiffs differently based on a particular characteristic. But we may deduce

the existence of the requisite discriminatory intent by examining surrounding

circumstances.

Citizens for Const. Integrity v. United States, 57 F.4th 750, 765-66 (10th Cir. 2023)

(citations and internal quotation marks omitted). In their Response, Plaintiffs argue that

their allegations are sufficient to plead an equal protection claim under the second category

set forth above. See Pls.’ Resp. (Doc. No. 110) at 24.

Under the framework articulated in Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252 (1977), “a facially neutral statute can violate

equal protection if a challenger proves that [the legislature] enacted the statute for a

discriminatory purpose or intent and the statute has a racially disparate impact.” United

States v. Amador-Bonilla, 102 F.4th 1110, 1115 (10th Cir. 2024).

Arlington Heights lists five factors to consider when determining if

Congress passed a statute with a discriminatory purpose: (1) the “historical

background of the decision,” (2) the “specific sequence of events leading up

to the challenged decision,” (3) “[d]epartures from the normal procedural

sequence,” (4) “[s]ubstantive departures,” and (5) “legislative or

administrative history . . . especially where there are contemporary

statements by members of the decisionmaking body.”

Id. at 1116 (alterations and omission in original) (quoting Vill. of Arlington Heights, 429

U.S. at 267-68).

Importantly, a plaintiff “do[es] not have to prove that the [state action] rested solely

on racially discriminatory grounds.” Dowell ex rel. Dowell v. Bd. of Educ. of Okla. City

Pub. Schs., 8 F.3d 1501, 1518 (10th Cir. 1993). Rather, a plaintiff need only show that

“‘the decisionmaker selected or reaffirmed a particular course of action at least in part

because of, not merely in spite of, its adverse effects on an identifiable group.’” Navajo

Nation v. New Mexico, 975 F.2d 741, 743-44 (10th Cir. 1992) (alteration and omission

omitted) (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). “The

task of assessing a jurisdiction’s motivation, however, is not a simple matter; . . . it is an

inherently complex endeavor, one requiring the trial court to perform a sensitive inquiry

into such circumstantial and direct evidence of intent as may be available.” Hunt v.

Cromartie, 526 U.S. 541, 546 (1999) (internal quotation marks omitted). And, of course,

“[t]he legislature’s motivation is itself a factual question.” Id. at 549.

For purposes of the present motions, the Court finds that Plaintiffs have adequately

pled their Fourteenth Amendment equal protection claims. Plaintiffs allege that the

Oklahoma Legislature deviated from its own procedures when it passed the Act and that it

was enacted, at least in part, “with the purpose to discriminate against students of color by

chilling and suppressing Inclusive Speech aimed at enhancing the educational, social, and

civic experiences of students of color and their families.” Am. Compl. ¶¶ 108-114, 184.

Plaintiffs further point to the historical background of the Act, as well as specific statements

of legislators that, according to Plaintiffs, demonstrate the legislators’ discriminatory

intent. See id. ¶¶ 102-107, 120-126. The State Defendants dispute that the Act prohibits

what Plaintiffs identify as “Inclusive Speech,” and they contend that the legislators’

statements support a finding of anti-discriminatory, not discriminatory, intent. See State

Defs.’ Mot. JOP at 5-6. The State Defendants further argue that the intent of the legislature

as a whole cannot be inferred from the historical background or the individual legislators’

statements, and they dispute the inferences Plaintiffs draw from the Act’s procedural

background. See id. at 7-9. Ultimately, however, such arguments are premised upon

factual disputes and do not undermine the plausibility of Plaintiffs’ well-pled allegations.

Accepting those allegations as true, Plaintiffs have alleged facts from which it can be

reasonably inferred that the Act was passed “at least in part because of” a discriminatory

purpose or intent. Navajo Nation, 975 F.2d at 744 (emphasis omitted).

C. Defendant EPS’ Motion to Dismiss

Defendant Edmond Public Schools is the third-largest school district in Oklahoma

and is subject to the requirements of the Act. Am. Compl. ¶ 27. Plaintiffs assert the

following unique claims against EPS: (1) the Act, as applied by EPS, is unconstitutionally

vague in violation of the Fourteenth Amendment; (2) the Act, as applied by EPS, violates

the Equal Protection Clause of the Fourteenth Amendment. See id. ¶¶ 156-170, 177-189.

As to each of Plaintiffs’ Fourteenth Amendment claims, Defendant EPS contends

that Plaintiffs’ allegations are insufficient to state a claim because Plaintiffs fail to allege

“any unlawful conduct” on the part of EPS or that EPS “is violating the constitutional or

statutory rights of any Plaintiff.” Def. EPS’s Mot. to Dismiss at 12.

A local governmental entity such as EPS may be sued directly under § 1983 when

“the action that is alleged to be unconstitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by that body’s

officers.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978). Thus,

to establish a claim against Defendant EPS, Plaintiffs must plead facts plausibly showing:

(1) the existence of a policy or custom attributable to EPS; and (2) “an affirmative or direct

causal link between [EPS’] adoption or implementation of [that] policy [or custom] and a

deprivation of federally protected rights.” Dodds v. Richardson, 614 F.3d 1185, 1202 (10th

Cir. 2010) (internal quotation marks omitted); see also Walker v. Wegener, No. 11-CV-

03238, 2012 WL 4359365, at *10 (D. Colo. Aug. 30, 2012) (R. & R.), adopted, 2012 WL

4355621 (D. Colo. Sept. 24, 2012).

Plaintiffs take issue with four policies allegedly adopted by Defendant EPS

following the Act’s enactment. First, EPS issued an interpretative guidance document

relating to the Act. The Guidance Document lists section 24-157(B)(1)’s prohibited

concepts and provides commentary on the scope of each prohibition. See Am. Compl. ¶

66; id. Ex. 1 (Doc. No. 50-1) (the “Guidance Document”). Second, EPS prohibited

teachers from using the terms “diversity” and “white privilege.” Am. Compl. ¶ 67. Third,

EPS removed certain books from its reading list and curriculum. Id. Finally, EPS

discontinued offering its “Diversity Module” training to teachers. Id. ¶ 68.

Accepting Plaintiffs’ allegations as true, the Court finds that Plaintiffs have

sufficiently identified specific policies whose implementation or execution is attributable

to Defendant EPS. See Dodds, 614 F.3d at 1202; Schneider v. City of Grand Junction

Police Dep’t, 717 F.3d 760, 770 (10th Cir. 2013) (“A challenged practice may be deemed

an official policy or custom for § 1983 municipal-liability purposes if it is a formally

promulgated policy, a well-settled custom or practice, a final decision by a municipal

policymaker, or deliberately indifferent training or supervision.”).

Plaintiffs fall short, though, in alleging an “affirmative” or “direct causal” link

between those policies and any deprivation of their Fourteenth Amendment rights. Dodds,

614 F.3d at 1202; see also Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,

415 (1997) (“Congress did not intend municipalities to be held liable unless deliberate

action attributable to the municipality directly caused a deprivation of federal rights.”

(emphasis omitted)). A law violates due process guarantees if it “fails to give ordinary

people fair notice of the conduct it punishes” or is “so standardless that it invites arbitrary

enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015). And “[t]he Equal

Protection Clause is essentially a direction that all persons similarly situated should be

treated alike,” as equal-protection jurisprudence is generally “concerned with

governmental action that disproportionately burdens certain classes of citizens.” A.M. v.

Holmes, 830 F.3d 1123, 1166 (10th Cir. 2016) (internal quotation marks omitted).

Plaintiffs suggest that Defendant EPS’ Guidance Document “chill[s] [educators] in their

ability to provide students with anything but the most ambiguous answers to their

questions.” Am. Compl. ¶ 66. Plaintiffs also allege that EPS student A.A., a member of

Plaintiff NAACP-Oklahoma, has “lost access to texts by Black and women authors that

explicitly discuss racial and gender relations.” Id. ¶ 69. Finally, Plaintiffs allege that

removing these texts from the school’s reading list “is a detriment to the students’ social,

cognitive, and emotional development.” Id. These allegations do not plausibly

demonstrate that EPS’ policies are unconstitutionally vague or violative of equal

protection.

Further, to the extent that Plaintiffs premise their claim for liability on the allegedly

unconstitutional nature of the Act, compliance with this state statute “do[es] not constitute

[an EPS] policy for the purposes of § 1983 claim municipal liability.” Walker, 2012 WL

4359365, at *10 (“Mere enforcement of a state statute is not a sufficient basis for imposing

§ 1983 municipal liability.” (internal quotation marks omitted)); see also Brown, 520 U.S.

at 405, 415 (explaining that a municipality must be the “moving force” behind the alleged

injury and should not “be held liable for an injury that it did not cause”).

For these reasons, the Court finds that Plaintiffs’ Amended Complaint fails to state

a Fourteenth Amendment claim against EPS upon which relief can be granted. The Court

need not reach EPS’ additional arguments for dismissal.

CONCLUSION

IT IS THEREFORE ORDERED:

 The Court GRANTS IN PART, DENIES IN PART, and RESERVES RULING IN

PART as to the University Defendants’ Motion to Dismiss (Doc. No. 51).

Specifically:

o Plaintiffs’ claims against the University of Oklahoma Board of Regents are

DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil

Procedure 12(b)(6);

o Plaintiffs’ First Amendment and Fourteenth Amendment vagueness claims

against the members of the University of Oklahoma Board of Regents in their

official capacities challenging the first sentence of title 70, section 24-

157(A)(1) of the Oklahoma Statutes are DISMISSED WITHOUT

PREJUDICE pursuant to Federal Rule of Civil Procedure 12(b)(1);

o The Court RESERVES RULING on Plaintiffs’ First Amendment claims and

Fourteenth Amendment vagueness claims against the members of the

University of Oklahoma Board of Regents in their official capacities

challenging the second sentence of title 70, section 24-157(A)(1) of the

Oklahoma Statutes, pending certification of questions of law and a response

from the Oklahoma Supreme Court; and

o Plaintiffs’ Fourteenth Amendment equal protection claims shall remain

pending.

 The Court GRANTS IN PART, DENIES IN PART, and RESERVES RULING IN

PART as to the State Defendants’ Motion for Judgment on the Pleadings (Doc. No.

106). Specifically, as to Plaintiffs’ claims against Governor Stitt, Attorney General

Drummond, Superintendent Walters, the members of the Oklahoma State Board of

Education, and the Oklahoma State Regents for Higher Education, all in their

official capacities:

o Plaintiffs’ First Amendment and Fourteenth Amendment vagueness claims

challenging the first sentence of title 70, section 24-157(A)(1) of the

Oklahoma Statutes are DISMISSED WITHOUT PREJUDICE pursuant to

Federal Rule of Civil Procedure 12(b)(1);

o Plaintiffs’ First Amendment claims challenging the second sentence of title

70, section 24-157(A)(1) of the Oklahoma Statutes shall remain pending;

o The request for judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c) is GRANTED as to Plaintiffs’ First Amendment claims

challenging title 70, section 24-157(B)(1) of the Oklahoma Statutes.

Judgment on these claims shall be entered at the conclusion of the litigation;

o The Court RESERVES RULING on Plaintiffs’ claims that the Act is

unconstitutionally vague in violation of the Fourteenth Amendment, pending

certification of questions of law and a response from the Oklahoma Supreme

Court; and

o Plaintiffs’ Fourteenth Amendment equal protection claims shall remain

pending.

 The Motion to Dismiss (Doc. No. 52) filed by Defendant Independent School

District No. 12, Oklahoma County, Oklahoma, is GRANTED IN PART and

DENIED AS MOOT IN PART, as follows:

o The Motion is DENIED AS MOOT insofar as it seeks dismissal on the basis

that the claims are brought against improper defendants; and

o Plaintiffs’ claims against Defendant Independent School District No. 12,

Oklahoma County, Oklahoma, are DISMISSED WITHOUT PREJUDICE

pursuant to Federal Rule of Civil Procedure 12(b)(6).

IT IS FURTHER ORDERED that the Court shall separately direct the parties to

submit proposed questions of state law relating to article XIII, section 8 of the Oklahoma

Constitution for certification to the Oklahoma Supreme Court.

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

CHARLES B. GOODWIN

United States District Judge

36