“Divisive Concepts” K–12 Curriculum Restrictions Survive Vagueness Challenge When Read to Bar Teaching Discriminatory Concepts as Correct Principles

1. Introduction

Black Emergency Response Team v. Drummond (10th Cir. Sept. 9, 2026) addresses Oklahoma H.B. 1775’s K–12 provision, Okla. Stat. tit. 70, § 24-157(B), which prohibits public-school employees from “require[ing] or mak[ing] part of a course” eight listed “concepts” that, on their face, advance race- or sex-based discriminatory principles. Teachers, students, parents, and organizations challenged the law chiefly on two theories: (1) that subsection B is unconstitutionally vague under the Fourteenth Amendment; and (2) that it violates students’ First Amendment “right to receive information.”

The district court preliminarily enjoined enforcement of the word “require” and concepts (c) and (d), finding those portions likely vague, but declined to enjoin the statute on First Amendment grounds after having dismissed those claims on the pleadings in a companion merits order. The parties cross-appealed from the preliminary-injunction order.

The Tenth Circuit’s decision is important for two reasons: it (i) adopts a narrowing, text-based construction of § 24-157(B) that defeats a vagueness-based preliminary injunction, and (ii) refuses to reach the First Amendment “right-to-receive-information” claims on interlocutory review because appellants did not adequately establish appellate jurisdiction over claims resolved in the separate merits order.

2. Summary of the Opinion

  • Vagueness: The court held the district court abused its discretion by enjoining any part of subsection B for vagueness. Interpreting the statute’s “plain text,” it concluded § 24-157(B) prohibits school employees from teaching the eight concepts as correct principles (or requiring teachers to do so). Under that reading, the plaintiffs were not likely to succeed on facial or as-applied vagueness claims.
  • First Amendment: The court did not reach the students’ “right to receive information” theory because appellants failed to show appellate jurisdiction to review a claim decided in the companion order, Black Emergency Response Team v. Drummond (BERT I).
  • Disposition: The preliminary injunction was vacated and the case remanded.

3. Analysis

3.1. Precedents Cited

A. Preliminary-injunction framework

  • Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008): The panel applied Winter’s four-factor test and emphasized that “[a]n injunction can issue only if each factor is established,” quoting Denv. Homeless Out Loud v. Denver, 32 F.4th 1259 (10th Cir. 2022). Because only “likelihood of success” was contested on appeal, the court focused exclusively on the merits-likelihood component.
  • Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792 (10th Cir. 2019) and United States v. Kirby, 161 F.4th 1208 (10th Cir. 2025): These framed the appellate abuse-of-discretion standard while preserving de novo review for underlying legal errors.
  • Derma Pen, LLC v. 4EverYoung Ltd., 773 F.3d 1117 (10th Cir. 2014) and United States v. Jimenez-Marquez, 171 F.4th 1204 (10th Cir. 2026): The panel relied on these to review de novo the legal question whether plaintiffs were likely to prove vagueness.

B. Vagueness doctrine (fair notice + non-arbitrary enforcement)

  • Wyo. Gun Owners v. Gray, 83 F.4th 1224 (10th Cir. 2023) (quoting Hill v. Colorado, 530 U.S. 703 (2000)): Supplied the two independent vagueness rationales: lack of fair notice and risk of arbitrary/discriminatory enforcement.
  • Dr. John’s, Inc. v. City of Roy, 465 F.3d 1150 (10th Cir. 2006): Provided (i) the “stricter standards” principle when First Amendment concerns are implicated and (ii) the Tenth Circuit’s facial-vagueness framing (“vague in the vast majority of its applications,” “vagueness permeates [the] text”).
  • United States v. Walker, 74 F.4th 1163 (10th Cir. 2023): Used for the availability of facial and as-applied vagueness challenges and for pre-enforcement context.
  • Johnson v. United States, 576 U.S. 591 (2015): Cited for the idea that a statute is not saved from facial vagueness merely because some conduct clearly falls within it, and to resist the defendants’ push for the United States v. Salerno, 481 U.S. 739 (1987) “no set of circumstances” test.
  • United States v. Williams, 553 U.S. 285 (2008), Wash. State Grange v. Wash. State Repub. Party, 552 U.S. 442 (2008), and Boos v. Barry, 485 U.S. 312 (1988): These supplied the court’s caution that “perfect clarity” is not required, and that statutes can survive if they have a “plainly legitimate sweep” and use “words of common understanding.”
  • Fabrizius v. Dep’t of Agric., 129 F.4th 1226 (10th Cir. 2025) and StreetMediaGroup, LLC v. Stockinger, 79 F.4th 1243 (10th Cir. 2023): These reinforced that borderline applications do not make a statute vague and that breadth is not the same as vagueness.
  • Bushco v. Shurtleff, 729 F.3d 1294 (10th Cir. 2013): Used to explain how a scienter requirement can mitigate vagueness—then leveraged to reject the argument that the absence of explicit scienter itself creates vagueness.
  • Grayned v. City of Rockford, 408 U.S. 104 (1972), Green Room LLC v. Wyoming, 157 F.4th 1196 (10th Cir. 2025), and Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975): These supported the federalism-sensitive approach: federal courts should avoid invalidating state statutes for vagueness where the statute is “readily subject” to a constitutional construction, while also recognizing the limit that federal courts generally cannot “narrow” state laws beyond “allowable meaning.”

C. State-law interpretation and certification

  • Black Emergency Response Team v. Drummond, 571 P.3d 135 (Okla. 2025): The Oklahoma Supreme Court declined to answer certified questions about “require” and concepts (c) and (d), stressing that certification should avoid or alter the federal constitutional question and warning against issuing advisory interpretations. The Tenth Circuit used this to confirm that it had to interpret § 24-157(B) itself under Oklahoma’s interpretive rules.
  • McNeill v. City of Tulsa, 953 P.2d 329 (Okla. 1998), Toch, LLC v. City of Tulsa, 474 P.3d 859 (Okla. 2020), Lang v. Erlanger Tubular Corp., 206 P.3d 589 (Okla. 2009), and Brassfield v. State, 544 P.3d 938 (Okla. 2024): These provided the Oklahoma methodology (plain meaning, dictionary use, whole-text/holistic reading, and avoidance of absurdity) that drove the panel’s “plain-text” construction of subsection B.
  • United States v. Gaudreau, 860 F.2d 357 (10th Cir. 1988) and Stokes v. United States, 967 F.3d 1034 (10th Cir. 2020): Used for the principle that federal courts interpret state statutes as the state supreme court would.

D. Appellate jurisdiction and party burden

  • SeedX, Inc. v. Lincoln Strategy Grp. LLC, 158 F.4th 1166 (10th Cir. 2025), Chieftain Royalty Co. v. SM Energy Co., 100 F.4th 1147 (10th Cir. 2024), Raley v. Hyundai Motor Co., Ltd., 642 F.3d 1271 (10th Cir. 2011): These anchored the panel’s refusal to reach the “right-to-receive-information” issue: appellants must affirmatively demonstrate jurisdiction; the court will not “conjure up” theories.

3.2. Legal Reasoning

A. The court’s narrowing construction of “require or make part of a course”

The core move in the majority opinion is interpretive, not empirical: it reads subsection B’s operative clause (“No teacher, administrator or other employee … shall require or make part of a course the following concepts”) as targeting instructional endorsement—i.e., teaching the eight listed concepts “as correct principles,” or requiring teachers to do so.

The court supported that reading by (i) linking “course” to ordinary usage (“a series of lectures, lessons, or instructional sessions”), (ii) treating “require” as an administrator’s demand that teachers teach those principles, and (iii) emphasizing that each “concept” is phrased as an unqualified discriminatory proposition (“is,” “should,” “cannot and should not,” “bears responsibility,” “should feel,” “are … or were”). Under this approach, classroom discussion about these ideas—historical reference, abstract exploration, or discussion prompted by texts or current events— does not violate the statute unless the educator presents the discriminatory proposition as true or obligatory.

B. Application to vagueness

With the statute read as an endorsement/proscription rule, the panel concluded ordinary educators have fair notice of prohibited conduct: they may not teach racial or sex-based superiority, inherent racism/sexism by virtue of race/sex, group-based moral determinism, collective guilt/responsibility, or that any student should feel race/sex-based psychological distress, as correct principles. And enforcement is sufficiently cabined because the statute’s reach turns on whether the educator taught (or required) the propositions as truth, rather than merely discussed them.

C. Reversal of the district court’s partial vagueness findings

The district court found “require” ill-matched to “concepts,” and found “treatment” and “treat” in concepts (c) and (d) too expansive. The panel disagreed, reasoning (1) “require” is awkward but intelligible in context (administrator compels teaching as correct), and (2) the breadth of “treatment/treat” does not create ambiguity when the only forbidden classroom “concept” is the proposition that someone should receive adverse treatment due to race/sex or that members of a race/sex cannot/should not treat others without respect to race/sex.

D. Refusal to reach First Amendment “right to receive information” on interlocutory appeal

Although the appeal formally arose under 28 U.S.C. § 1292(a)(1) (injunction interlocutory jurisdiction), the panel treated the First Amendment issue as procedurally blocked: the claim had been decided in BERT I (judgment on the pleadings), and appellants did not meaningfully explain why that merits determination was reviewable in this appeal from BERT II. Emphasizing the appellant’s burden to establish jurisdiction, the panel dismissed that portion of the appeal and pointed plaintiffs to a later appeal after final judgment under 28 U.S.C. § 1291.

3.3. Impact

  • For “divisive concepts” statutes: The decision supplies a litigation road map for defending similarly worded statutes against vagueness attacks: argue that “make part of a course” targets teaching-as-truth (endorsement/proselytization) rather than discussion, historical description, or student debate. The majority’s insistence that the text itself supports that reading will be cited by states seeking to keep such laws in force without sweeping preliminary injunctions.
  • For educators and compliance: The holding narrows the practical compliance trigger to “presenting the concept as correct.” Even so, disputes may persist in application (e.g., when a lesson arguably communicates endorsement implicitly), suggesting future cases may pivot toward as-applied challenges built on concrete enforcement records—something the dissent highlighted as a real-world risk.
  • For preliminary-injunction practice in constitutional cases: The decision underscores that interlocutory appeals are not a vehicle to revisit merits rulings from separate orders unless jurisdiction is clearly established and briefed. This is a significant procedural lesson for plaintiffs who lose some claims on the pleadings while litigating an injunction in parallel.
  • For federal-state judicial relations: The Oklahoma Supreme Court’s refusal to answer certified questions, and the Tenth Circuit’s consequent willingness to decide state-law meaning directly, signals that certification will not be used to obtain “advisory” definitions when the federal constitutional dispute remains.

4. Complex Concepts Simplified

  • “Void for vagueness”: A law is unconstitutional if people cannot reasonably tell what it forbids (fair notice) or if it gives officials too much discretion to enforce it selectively (arbitrary enforcement).
  • Facial vs. as-applied vagueness: A facial challenge argues a law is unclear in most of its applications; an as-applied challenge argues it is unclear in the specific situation faced by the plaintiffs.
  • Preliminary injunction: A temporary court order issued early in a case. The key merits question here was whether plaintiffs were likely to win their vagueness claim, not whether the statute was definitively constitutional.
  • Statutory construction “saving” a statute: Courts may adopt a reasonable, text-supported interpretation that avoids constitutional problems, but they may not rewrite the law. The majority and dissent disagree about whether the “teach as correct principles” limitation is truly in the statutory text.
  • Interlocutory appellate jurisdiction: Even when an injunction order is appealable, appellants must still show the appellate court has authority to decide each additional issue they seek to raise—especially if that issue was decided in a different order.

5. Conclusion

Black Emergency Response Team v. Drummond establishes a consequential interpretive and procedural precedent in the Tenth Circuit: Oklahoma’s § 24-157(B) is not likely void for vagueness—at least at the preliminary-injunction stage—when read, by its “plain text,” to bar only the teaching (or compelled teaching) of eight listed discriminatory propositions as correct principles. The decision also serves as a warning that interlocutory injunction appeals will not automatically open the door to review merits rulings from separate orders absent a clearly articulated jurisdictional basis.