Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—10th Cir.: Preliminary injunction lifted against Oklahoma law prohibiting teaching on race, sex concepts, (Sep 10, 2026)

By Todd Harrison, J.D.

“Apart from any prohibited racist or sexist editorializing, teachers remain free to instruct about historical or popular issues, and students remain free to draw their own conclusions.”

Vacating a preliminary injunction against the enforcement of portions of an Oklahoma law banning the teaching of certain concepts surrounding race and sex, a divided Tenth Circuit determined that, under the statute’s plain text, the plaintiffs were unlikely to show that the language was impermissibly vague. Although the plaintiffs were concerned that the statute would prohibit educators from discussing certain concepts in the abstract or in connection with historical or popular figures, the court found that the statute’s language did not support such a broad interpretation, and instead merely prohibited the teaching of the concepts in question as correct principles or requiring teachers to do so. Judge Moritz dissented, contending the majority’s limiting principle did not appear in the statute’s plain language (Black Emergency Response Team v. Drummond, Nos. 24-6139, 24-6140 and 24-6141 (10th Cir. Sept. 9, 2026)).

Under subsection B of Oklahoma H.B. 1775, public-school employees may not “require or make part of a course” any of eight prohibited “concepts.” According to the court, each concept is a principle that, if taught, would advocate race or sex discrimination. Those eight concepts matched those outlined in a later overturned 2020 federal executive order forbidding the promotion of “race or sex stereotyping or scapegoating in the Federal workforce.”

Lawsuit. In the fall of 2021, several plaintiffs sued state and local officials, seeking to permanently enjoin the statute’s enforcement and for the court to declare its implementing rule unconstitutional. The plaintiffs had argued that each of the eight prohibited concepts was unconstitutionally vague, while also arguing that subsection B’s language preceding the eight concepts was vague in its use of “require,” “make part of a course,” and “align to.”

The district court concluded that the plaintiffs were likely to succeed on some, but not all, of their vagueness claims. The court first considered the prohibition that no school employee “shall require or make part of a course the following concepts,” finding no vagueness in the wording of “make part of a course.” The court explained that when “read in conjunction with the eight prohibited concepts,” the term’s “plain and ordinarily understood meaning” was “to prohibit school personnel from directly endorsing, promoting, or inculcating any concept as a normative value.”

However, the court struggled to make sense of “require... the following concepts,” gleaning “an illogical mismatch between verb and object.” In the eyes of the court, for subsection B “to generally direct that a concept may not be required opens the statute to a variety of interpretations.” Thus, the court concluded that subsection B was likely “unconstitutionally vague as to the term ‘require’ in the introductory verb clause.”

Turning its attention to the text of the eight prohibited concepts, the court determined that six were sufficiently clear, but the words “treatment” and “treat” in the other two concepts rendered those concepts vague, finding them broad enough to prohibit a teacher from “making part of a course ideas that are subjects of current political debate” (like the propriety of race- and sex-based affirmative action) and from “endorsing ideas that are widely accepted and are reflected in current law” (like gendered sports leagues for children). Accordingly, the court enjoined the defendants from enforcing the word “require” in subsection B’s introductory verb clause, and prohibited the two concepts in their entirety along with subsection B’s implementing rule.

Appeal. Subsequently, the plaintiffs appealed the court’s partial denial of a preliminary injunction on the remainder of their vagueness claims. The defendants appealed the court’s partial grant of a preliminary injunction for vagueness as to the three challenged parts of subsection B.

“Make part of a course.” In addressing the vagueness claims, the appellate court determined that the plaintiffs were unlikely to show that the term “make part of a course” is vague, facially or as applied. The phrase “make part of a course,” explained the court, “most likely means teach as correct principles or require teachers to do so.”

A look at the term’s broader context led the court to the same conclusion. The opening language of subsection B states that, “The provisions of this subsection shall not prohibit the teaching of concepts that align to the Oklahoma Academic Standards.” The “teaching of concepts” phrase appears in the same breath as “make part of a course,” observed the court, further confirming that subsection B’s focus is on teaching.

Whether “make part of a course” is read broadly or narrowly, a teacher would not violate subsection B unless the teacher taught race or sex discrimination as specified in the concepts, explained the court. A teacher, continued the court, would be unlikely to do so by accident. The court pointed to the plain language of the concepts, highlighting the verbs and auxiliaries of each. For example, the prohibition of teaching that “meritocracy or traits such as hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race.”

Those verbs and auxiliaries prohibit teachers from instructing that the above concept along with the seven others is correct, said the court, going on to state that each prohibited concept is an unqualified racist or sexist assertion. Thus, in order to violate subsection B, a teacher must present those concepts as fact, just as the statute does. A teacher would not violate subsection B by instructing about a historical or popular figure’s beliefs, nor by encouraging discussion about current events and ideas, explained the court.

In short, concluded the court on this point, “subsection B prohibits teachers from proselytizing students to accept certain racist or sexist creeds as truth. Apart from any prohibited racist or sexist editorializing, teachers remain free to instruct about historical or popular issues, and students remain free to draw their own conclusions.”

“Require.” In addition, the court found the plaintiffs were unlikely to show that “require... the following concepts” is vague, either. Because the court reads “make part of a course” and “require” as meaning teach as correct principles or require teachers to do so, the plaintiffs were unlikely to show that either term was vague. Accordingly, the court affirmed the district court’s ruling as to “make part of a course” and reversed its ruling as to “require.”

Concepts. Turning to the concepts themselves, the court determined the plaintiffs were unlikely to show that these were vague as well. The plain language and context of the concepts provide people of “ordinary intelligence” an opportunity to understand what it is that the concepts prohibit, explained the court. Each concept, continued the court, was specific enough to discourage arbitrary and discriminatory enforcement. Thus, the court reversed the district court’s ruling as to the two concepts in question and affirmed its ruling as to the other six concepts, vacating the preliminary injunction and remanding for further proceedings.

Dissent. In a dissent, Judge Moritz argued that the court was attempting an impermissible rewriting of the statute to save it from vagueness, contending the majority effectively grafted onto the statute a limiting principle in holding that the phrase “require or make part of a course” means only “teaching the prohibited concepts as correct principles.” Such a limiting principle, argued the judge, “neither appears in the statute’s plain language, nor can it be gleaned from the verbs used in the banned concepts.”

The case is Nos. 24-6139, 24-6140 and 24-6141.

Judge: Phillips, G.

Attorneys: Julia Beskin (McDermott Will & Schulte) for 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, Anthony Crawford and Regan Killackey. William Patrick Flanagan, Office of the Attorney General, for Gentner Drummond, Lindel Fields, Brian Bobek, Donald Burdick and John Wes Nofire.

Companies: Black Emergency Response Team; Oklahoma State Conference of the National Association for the Advancement of Colored People; American Indian Movement Indian Territory

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