Two years after their lawsuit was filed, lawyers for a group of plaintiffs made arguments in federal court during a two-hour hearing today seeking an injunction of the state’s purported ban on critical race theory, HB 1775, which they said has a “chilling effect” on educators because it is too vague.
Meanwhile, lawyers for some of the defendants — which include a variety of public bodies and officials — argued the law is sufficiently narrow in interpretation but could be challenged because of how it has been enforced.
Filed in October 2021 in U.S. District Court for the Western District of Oklahoma, the case has a lead plaintiff of OU’s Black Emergency Response Team, a student organization that advocates for Black students on campus. The organization’s members say they were harmed by the law because it allegedly prevents race-based training requirements in universities. Other plaintiffs include the Oklahoma chapter of the American Association of University Professors, the Oklahoma chapter of the NAACP, the American Indian Movement Indian Territory, an unnamed former Millwood High School student, Millwood High School teacher Anthony Crawford, and Edmond Memorial High School teacher Regan Killackey.
“As Oklahoma educators were reckoning with our nation and our state’s past to build a more just future, Oklahoma legislators were seeking to eradicate all discussion of institutional racism and gender diversity in Oklahoma classrooms from K-12 to the university through broad, sweeping language that has left Oklahoma educators unsure of whether they can include any material that addresses race, sexual orientation or gender in the classroom,” ACLU of Oklahoma legal director Megan Lambert told reporters after the hearing. “Therefore, we argue that House Bill 1775 is unconstitutionally vague (…) resulting in arbitrary and discriminatory enforcement against educators across the state.”
Lambert, who is an attorney in the case, summarized the argument her team made in federal judge Charles Goodwin’s courtroom Monday.
“We argue [HB 1775] is an overbroad restriction on academic freedom of university professors in violation of their First Amendment rights, and that it restricts students’ access to critical perspectives and information in violation of their First Amendment right to receive information, and that it discriminates against Black and Indigenous students who no longer see themselves reflected in class curricula in violation of their 14th Amendment right to equal protection under the law,” Lambert said.
Solicitor general: Alleged harms are ‘overblown’
The lawsuit names the Oklahoma governor, attorney general, state superintendent of public instruction, State Board of Education, state regents for higher education, University of Oklahoma regents and Edmond Public Schools as defendants. Lawyers for EPS, the state and OU made arguments Monday in front of Goodwin.
Oklahoma Solicitor General Garry Gaskins — who represents the state of Oklahoma defendants — did most of the talking Monday while OU’s lawyer argued that the university should not be a party in the case.
Gaskins argued the state’s interpretation of the law has been narrow enough that an injunction on a facial reading of the law is not necessary. He also said a provision of the law stipulates that the Oklahoma academic standards, which do require discussion of race and gender in classrooms, take precedent over HB 1775.
“It’s clear from the Oklahoma academic standards that teachers can discuss [race and gender topics],” Gaskins said during the hearing. “A lot of the alleged harms that the plaintiffs have asserted are overblown.”
While Gaskins argued against enjoining the law based only on its language, he did seem to suggest that either Tulsa Public Schools or Mustang Public Schools might have reason to challenge the law as it has been enforced.
“We don’t have anyone here from Tulsa Public Schools to challenge the law, but if they were to make an as-applied challenge, I think they would win,” Gaskins said.
Both TPS and MPS saw their accreditation statuses downgraded in July 2022 over supposed of violations of HB 1775, which prohibits “mandatory gender or sexual diversity training or counseling” at higher education institutions and bans the teaching of several concepts related to race or sex in public schools.
After Monday’s hearing, Lambert commented on the state’s position that, while the law is clear as written, it still deserves to be challenged because of how the Oklahoma State Department of Education and State Board of Education have enforced it.
“So that was news to us as well. We are not aware of the state’s position on those enforcement actions,” Lambert said. “And yes, that does speak to the fact that two branches of the state’s government — two entities of the state government (the attorney general’s office and the State Department of Education) — are disagreeing about what the law means is exactly what we mean when we say it is vague.”
Although the written arguments of the parties for or against the requested injunction have been pending before Goodwin for nearly two years, he did not issue a ruling Monday, nor did he offer a timeframe for when he might rule.
“Typically, motions for preliminary injunction — once they are fully briefed — pend for about three months,” Lambert said after the hearing. “This is certainly outside of the standard, and — at least in part — what we have heard from the court for the reasons for the delay is the complex nature of these claims.”
During the hearing, Goodwin seemed to float a number of possible outcomes from the proceedings. If Goodwin determines the law passed in HB 1775 is too vague, he could issue an injunction against the entire statute or just some of its provisions.
Goodwin also suggested Monday that he could ask the Oklahoma Supreme Court to weigh in on all or some of the law’s provisions. If he decides to ask a state court to weigh in, lawyers for the plaintiffs asked that Goodwin still issue a temporary injunction to prevent the law from being enforced while courts decide the matter.
Background on HB 1775
Signed in May 2021, HB 1775 has been controversial from the start, as Republican legislators across the country took aim at banning critical race theory, an academic perspective usually found in higher education settings that emphasizes how racism has shaped and continues to affect public policy in America.
Concepts listed in HB 1775 as prohibited for Oklahoma public schools are claims that:
- one race or sex is inherently superior to another race or sex;
- an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously;
- an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
- members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
- an individual’s moral character is necessarily determined by his or her race or sex;
- 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;
- any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex; and
- 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.
Educators across the state — including plaintiffs in the case — have said the law has created a culture of fear for teachers who are unsure if their classroom discussions will violate the law and cause their teaching licenses to be revoked or their districts’ accreditation to be downgraded.
One of the plaintiffs in the case — Oklahoma NAACP chapter president Bernard Allen-Bey — said after Monday’s hearing that the law is racist against students of color.
“It’s only the latest in the state’s attempts to segregate these students and to prevent them from sharing (their) background and histories. The law threatens our members across the state — both teachers and students,” Allen-Bey said. “We are encouraged by the court’s hearing. We’re happy even though it was delayed significantly, and we are encouraged by the outcome today, and I’m encouraged to think that it’s possible that we’re going to get a just ruling on this matter.”
Rep. Kevin West (R-Moore) authored HB 1775 in 2021, and he has maintained that its language does not prohibit discussions of historical events like the Tulsa Race Massacre.
“It’s the concept that any individual should feel discomfort, guilt, anguish, etc.,” West told KFOR in August 2022. “If the lesson plan is designed to incite a certain feeling that’s what the bill addresses.”