A federal judge is weighing opening statements in a lawsuit against House Bill 1775 filed two years ago.

The suit was filed in October 2021 by the ACLU and Lawyer’s Committee for Civil Rights Under Law on behalf of students and educators.

Plaintiffs asked U.S. District Judge Charles Goodwin to issue a preliminary injunction on HB 1775 while the case on the law’s merits works through the courts.

What does HB 1775 say?

For higher education:

• That no student at an Oklahoma university or college shall be required to engage in any form of mandatory gender or sexual diversity training or counseling. Voluntary counseling is not prohibited, but 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.
• The Oklahoma State Regents for Higher Education shall make rules to implement this part of the law.

For K-12:

• That none of the below points shall prohibit teaching the concepts of the Oklahoma Academic Standards.
• That no educator or school employee “shall require or make part of a course” any of the following concepts:
• That one race or sex is inherently superior.
• That by virtue of their race or sex, an individual is inherently racist, sexist or oppressive, whether consciously or unconsciously. 
• That an individual should be discriminated against or receive adverse treatment solely or partly due to their race or sex.
• That members of one race or sex cannot and should not attempt to treat others without respect to race or sex.
• That an individual’s moral character is necessarily determined by their race or sex.
• That by virtue of their race or sex, an individual bears responsibility for actions committed in the past by other members of the same race or sex.
• That any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of their race or sex
• That meritocracy or traits such as a “hard work ethic” are racist or sexist, or that they were created by members of a particular race to oppress members of another race.
• The Oklahoma State Board of Education shall make rules to implement this part of the law.

Main opening statements

At the hearing Monday, plaintiffs argued HB 1775 is unconstitutionally vague because educators have trouble understanding it, and it opens the door to arbitrary enforcement — something they say already happened when the state penalized Tulsa Public Schools for a “potential” violation last year.

They also argued the law violates students’ First Amendment right to receive an education.

As for higher education, plaintiffs’ lawyers argued the law created an overbroad restriction on academic freedom at universities. In response to the law, the University of Oklahoma changed its policy in 2021 of requiring the Gateway to Belonging diversity course for first-year students to instead allow students to choose one of three different courses.

OU’s Black Emergency Response Team (BERT) was brought into the lawsuit because HB 1775 prohibits “orientations or requirements that present any form of certain stereotyping or bias,” which lawyers say directly affects the diversity training BERT demanded and won during its historic February 2020 sit-in.

The plaintiffs addressed language in the bill they say is “hopelessly vague.” For instance, to “make part of a course,” they argued, could indicate that even a classroom discussion alone — as opposed to curriculum or textbook readings — could be considered a violation under the law.

Goodwin asked the defense what the law’s wording of “requirement” and “presents” mean, in the context of prohibiting “orientations or requirements that present any form of certain stereotyping or bias.”

Why not use language that’s more definitive, he asked, such as “endorse” or “promote,” if that’s what the law intends?

The defense responded that “presents” would mean not just mentioning a discriminatory idea but that an educator or institution would have to characterize the idea as a ‘positive good.’

“You’re asking me to do a lot of work here,” Goodwin remarked on interpreting the word.

One of the state’s main defense arguments is that the lawsuit is a facial vagueness challenge, which means the suit is decided on whether the legislation is always unconstitutional and thus void.

Contrastingly, the plaintiff’s example of the overly broad enforcement of TPS’ “potential” HB 1775 violation would be an “as-applied challenge,” and wouldn’t be valid in this facial vagueness challenge case, the defense said. An “as-applied challenge” alleges that a certain application or implementation of the law is unconstitutional.

Interestingly, the state’s defense acknowledged TPS may actually have an “as applied” challenge to its violation because of how the law was broadly interpreted in that case.

The defense argued that mere uncertainty about the meaning of words does not itself meet the burden of a facial challenge.

The state’s defense also argued because there’s a provision in the law prioritizing the Oklahoma Academic Standards when classroom concepts conflict with the law, teachers are protected as long as they follow the standards and don’t “willfully” violate it.

Goodwin offered a stream of hypothetical situations for the defense to answer for, such as how a teacher should respond if a student says the Protestant work ethic and the idea of meritocracy is inherently racist. Is the teacher obligated to say that isn’t true? Would they be in violation of the law if they acknowledged the student made a good point?

The defense answered the teacher doesn’t have to respond, but if they do, they need to respond in compliance with HB 1775. It also argued the hypothetical situations presented don’t matter in a facial vagueness challenge.

But the plaintiffs answered that argument by saying the so-called “safe harbor” of Oklahoma Academic Standards trumping any HB 1775 conflicts doesn’t provide more clarity but instead compounds the confusion and places educators in the middle of legal interpretation.

The safe harbor, plaintiffs’ lawyers argued, does nothing to curb the “chilling effect” the law has.

Following the hearing, lawyers for the plaintiffs gave a press conference outside of the courthouse. Maya Brodziak, an attorney with the Lawyers Committee for Civil Rights Under Law, said the law has insidious, undemocratic origins.

“We know full well how and why this law came about,” Brodziak said. “Many Oklahoman legislators fear the truth of the history of racism and genderism being taught in our classrooms. They want to whitewash history, censor the experiences and viewpoints of people of color and other marginalized communities, and, in the end, indoctrinate students on historical viewpoints that only align with their own. This is not what democracy is about.”

What happens next?

Goodwin could issue the preliminary injunction, which would halt all HB 1775 proceedings. He also weighed the possibility of striking down certain parts of the law and keeping others, or “narrowly constructing” the law — meaning the statute would get more clarifying language. He could also send the case or parts of it to the Oklahoma Supreme Court to weigh in.