Data on Appeal: Oklahoma’s HB 1775, classroom speech, and the First Amendment in the Tenth Circuit
Oklahoma’s HB 1775 has been in federal court since 2021. The Tenth Circuit heard argument on March 17, 2026. Here is what the what the court has to decide.
This is the first post in a new series: Data on Appeal — where I break down cases that have important local and national consequences focusing on what the court will decide and what the numbers surrounding the case suggest.
Oklahoma passed a law in 2021 telling K-12 teachers not to make eight specific concepts about race and sex “part of a course.” More than four years later, a federal appeals court is being asked to decide whether anyone — teacher or student — can actually tell from that phrase what it forbids.
The question sounds technical. The stakes are not. If the Tenth Circuit agrees with plaintiffs that the law is too vague to enforce, significant portions of HB 1775 go down. If Oklahoma prevails, the statute survives and eighteen other states watching this appeal have a road map.
The case, by the numbers
Filed: October 2021, Western District of Oklahoma
Consolidated appeals: 24-6139, 24-6140, 24-6141
District court order: 36 pages, issued June 14, 2024 by Judge Charles Goodwin
K-12 prohibited concepts: 8
Concepts enjoined by the district court: 2 (subsections c and d), plus the word “require” in the introductory clause
Concepts currently in force: 6
Certified questions sent to Oklahoma Supreme Court: 6 (first 3 addressed higher education; remaining 3 addressed the enjoined K-12 provisions)
Oklahoma Supreme Court response: Declined to provide a narrowing construction; held the legislature lacked authority to impose HB 1775’s restrictions on the University of Oklahoma under the state constitution
States on South Carolina-led amicus brief: 18
State’s principal appellate brief: 15,300 words
Oral argument date: March 17, 2026, Tenth Circuit
What the law says
The K-12 portion of HB 1775 prohibits any teacher, administrator, or school employee from requiring or making part of a course eight specific concepts. Those eight concepts are:
That one race or sex is inherently superior to another
That an individual is inherently racist, sexist, or oppressive by virtue of race or sex
That an individual should be discriminated against based on race or sex (enjoined)
That members of one race or sex cannot treat others without regard to race or sex (enjoined)
That an individual’s moral character is determined by race or sex
That an individual bears responsibility for past actions of others of the same race or sex
That an individual should feel discomfort or psychological distress on account of race or sex
That meritocracy or traits like a work ethic are racist or were created to oppress members of another race
The statute includes one carveout: none of this prohibits teaching concepts that align with the Oklahoma Academic Standards. Oklahoma says that safe harbor gives teachers all the clarity they need. Plaintiffs say it deepens the confusion, because the Academic Standards themselves do not map cleanly onto the prohibited concepts.
How this case got to the Tenth Circuit
The procedural history is worth tracking because it shapes exactly what the appeals court must now decide.
2021: HB 1775 signed by Governor Kevin Stitt on May 7. Lawsuit filed October 19 by the Black Emergency Response Team, the Oklahoma NAACP, the American Indian Movement Indian Territory, the OU chapter of the American Association of University Professors, and individual student and teacher plaintiffs.
2022–2023: Motions practice, preliminary injunction proceedings, standing disputes. The district court finds standing based on chilling effect — plaintiffs presented evidence that teachers had altered classroom behavior out of fear of enforcement, including at least one OU instructor directed by a department head to stop testing students on critical race theory.
2024: Judge Goodwin issues the June 14 order. Key rulings:
Dismisses claims against the University of Oklahoma Board of Regents (not a “person” under Section 1983)
Finds K-12 teacher curricular speech is not protected by the First Amendment under Garcetti and Tenth Circuit precedent — grants judgment on the pleadings to the state on this count
Partially enjoins the K-12 provisions as unconstitutionally vague: the word “require” and concepts (c) and (d) are blocked
Certifies six state-law questions to the Oklahoma Supreme Court
Dismisses Edmond Public Schools on municipal liability grounds
2025: The Oklahoma Supreme Court responds to the certified questions. It declines to provide a narrowing construction of “require” or “make part of a course,” finding the terms too fact-specific to define in the abstract — what constitutes a requirement for a first grader differs from what constitutes one for a high schooler. The court also holds that the legislature lacked constitutional authority under Article XIII to impose the higher-education restrictions on the University of Oklahoma. That ruling effectively resolves the higher-education side of the case, leaving only the K-12 provisions for the Tenth Circuit.
Late 2025: ACLU and co-counsel dismiss the First Amendment claims against the University of Oklahoma, consistent with the Oklahoma Supreme Court ruling. Briefing on the K-12 appeals is completed. State’s principal brief filed October 20, 2025.
March 17, 2026: Oral argument before a three-judge Tenth Circuit panel.
What each side is asking the court to do
Plaintiffs are asking the Tenth Circuit to:
Hold that the district court’s vagueness injunction was too narrow — the phrase “make part of a course” is independently vague and should have been enjoined in full, not just the word “require” and two concepts
Recognize that K-12 students have an independent First Amendment right to receive curricular information, a claim the district court rejected
Point to concrete enforcement examples — Edmond’s guidance directing teachers to avoid terms like “diversity” and “white privilege,” the Mustang and Tulsa situations, and the Boismier matter — as evidence of the arbitrary enforcement that vague laws produce
Oklahoma is asking the Tenth Circuit to:
Affirm the district court’s rejection of the broader vagueness and First Amendment arguments
Go further and reverse even the partial injunction — the state argues the district court applied too strict a vagueness standard and that “require,” concept (c), and concept (d) are all sufficiently clear
Emphasize that “make part of a course” uses ordinary language, that the Academic Standards safe harbor provides meaningful guidance, and that the law has a “plainly legitimate sweep” under facial-challenge doctrine
Argue that public K-12 teaching is government speech, that students have no First Amendment right to receive speech from a government entity, and that curriculum design is itself a legitimate pedagogical concern
The 18-state amicus argues:
Facial vagueness challenges are strongly disfavored and courts should require challengers to show the law is vague in all or nearly all of its applications
The First Amendment imposes no affirmative obligation on states to provide any particular curriculum
Curriculum control is a democratic function, not a constitutional entitlement
The three questions the Tenth Circuit has to answer
1. How much of the K-12 law is unconstitutionally vague?
The district court found that “require” and two of the eight concepts lacked sufficient clarity to give teachers fair notice. Plaintiffs say the court stopped too soon — “make part of a course” raises the same problem and infects the entire K-12 provision. Oklahoma says the court went too far. The Oklahoma Supreme Court’s refusal to provide a narrowing construction cut both ways: it denied the state the definitional clarity it wanted, but it also returned the question to the federal court without a state-law anchor that would help plaintiffs.
2. Do students have a First Amendment right to receive curricular information?
This is the doctrinally harder question. The district court held that K-12 teacher curricular speech is not protected under the First Amendment — following Garcetti and the weight of circuit authority from the Sixth, Seventh, and Ninth Circuits — and that because no teacher-speech violation existed, no student right-to-receive claim could follow. Plaintiffs argue the student-side claim is analytically independent and grounded in a line of cases going back to the Supreme Court’s Pico plurality, which recognized a student right to receive information. Oklahoma says the First Amendment is a negative liberty — it does not require the government to provide any particular information.
3. What standard applies to facial challenges against education laws like this one?
Oklahoma and its amici are pushing a demanding facial-challenge standard: plaintiffs must show the law is vague in all or nearly all of its applications, not just in some marginal cases. Plaintiffs are pushing back, arguing that the concrete enforcement record — what actually happened in Edmond, Mustang, and the Boismier case — shows this is not a marginal-cases problem. The panel’s choice of standard here could be more consequential than its ruling on any individual provision.
What to watch
Oral arguments in this case were heard on March 17. Three signals in particular are worth tracking (I’ll follow up on these in a later post):
Did the panel press Oklahoma on the Edmond guidance? Edmond issued a guidance document directing teachers to avoid specific terms. The state says this had nothing to do with HB 1775. If the Tenth Circuit judges pushed back on that — asking why a school district would issue such guidance if the law was clear — the vagueness argument has more life than the state’s brief suggests.
Which judges substantively engage with the student-right-to-receive theory? If the judges asked plaintiffs what standard would govern a student-side claim and how the state’s curricular interests would be weighed, Scenario C — a remand to develop a student First Amendment theory — is more likely than the briefing alone suggests.
How hard did the panel press on the facial-challenge standard? Oklahoma’s strongest structural argument is that facial challenges require showing the law fails in virtually all applications, and that plaintiffs cannot clear that bar. If the judges seemed skeptical of that framing — pushing back on whether the heavy burden applies when the law’s core terms have never been defined — the vagueness claim has more room to expand.
An opinion should be expected within a few months of argument. Cases of this complexity and profile are rarely resolved from the Tenth Circuit bench within less than sixty days of argument; four to five months is more typical.
[The original version of the post misidentified the panel members. It is now rectified.]
Superb new addition!
Ah, those Fabulous Fifties—not only was a most excellent personage born (me, humbly) … but things so much simpler then: WASP prevails in all things. Oh, how I miss peering in the window at my superiors!