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Lawsuit challenges constitutionality of Oklahoma's critical race theory ban

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Oklahoma’s so-called critical race theory ban could soon have its day in court.

The ACLU and Lawyer’s Committee for Civil Rights Under Law filed a lawsuit on behalf of a group of students and educators against the state of Oklahoma over the state’s controversial critical race theory ban Tuesday.

The suit calls on the state to stop censoring teaching about race in classrooms.

“It [HB 1775] has had extreme and detrimental impacts in the classroom, across the state, across levels of education already,” ACLU of Oklahoma legal director Megan Lambert said. “And a lot of folks were extremely concerned not only about their own classrooms, but the future of civil discourse in Oklahoma if these prohibitions were to stand.”

The ACLU argues the so-called critical race theory ban prevents students from receiving an inclusive and accurate education.

House Bill 1775’s authors say the bill is supposed to ban critical race theory and ensure no students feel uncomfortable based on their race or sex.

HB 1775 and the rules Oklahoma's State Board of Education passed in July — and then later re-confirmed because of a scrivener’s error — do not ban critical race theory. Instead, they specifically ban teaching any of the following:

  • 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.
  • Meritocracy or traits such as a hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race.

The law never actually mentions the phrase critical race theory. But the intention, GOP lawmakers said when they passed it, is plain: ban teaching that makes students feel uncomfortable.

How the state board can do that remains unclear, and state standards will continue to include difficult topics like the Tulsa Race Massacre and Trail of Tears.

However, opponents of the bill say it could have a chilling effect on free speech. In July, StateImpact spoke with Oklahoma State School Boards Association attorney Brandon Carey. He encouraged educators not to fear the bill.

“It’s easy for me to say they shouldn’t be afraid,” he said. “My discussions with teachers and administrators tell me they are. And one reason they are is because of the way the bill is written in a way that confuses people. Let’s be honest, it creates fear. But I strongly encourage teachers to continue these discussions and administrators and school boards to back up their teachers in having these discussions, because I do not believe they are prevented by the language of this bill.”

That sentiment is reflected by the ACLU’s attorneys in a news release.

“All young people deserve to learn an inclusive and accurate history in schools, free from censorship or discrimination,” ACLU attorney Emerson Sykes said in a news release. “HB 1775 is so poorly drafted — in places it is literally indecipherable — that districts and teachers have no way of knowing what concepts and ideas are prohibited. The bill was intended to inflame a political reaction, not further a legitimate educational interest.”

According to a news release the suit was filed by the American Civil Liberties Union, ACLU of Oklahoma, the Lawyers Committee for Civil Rights Under Law, and pro bono counsel Schulte Roth & Zabel LLP on behalf of plaintiffs the Black Emergency Response Team (BERT); 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-OK); the American Indian Movement (AIM) Indian Territory on behalf of itself and its members who are public school students and teachers, a high school student, and Oklahoma public high school teachers Anthony Crawford and Regan Killackey.

Robby Korth joined KOSU as its news director in November 2022.
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