HB 1775 “Divisive Concepts” Upheld Against Vagueness by Construing It to Bar Teaching the Concepts as Correct Principles (and Limiting Interlocutory Review to the Injunction Order)

1. Introduction

Case: Black Emergency Response Team v. Drummond (10th Cir. Sept. 9, 2026).
Parties: A coalition of organizations, students, parents, and teachers (the “K‑12 plaintiffs,” including the Oklahoma NAACP and AIM Indian Territory) sued Oklahoma officials (Attorney General, Superintendent of Public Instruction/State Board President, State Board members, and Governor) challenging Oklahoma H.B. 1775, codified at Okla. Stat. tit. 70, § 24-157(B).
Statute at issue: Subsection B restricts K‑12 public-school employees from “require[ing] or mak[ing] part of a course” eight listed “concepts” that—on their face—assert discriminatory propositions about race or sex, with potential educator-licensing consequences under Okla. Admin. Code § 210:10-1-23(j).
Key issues on appeal:

  • Whether the district court properly issued a preliminary injunction on Fourteenth Amendment vagueness grounds as to (i) the word “require” and (ii) concepts (c) and (d).
  • Whether the Tenth Circuit could review, in this interlocutory appeal, the plaintiffs’ First Amendment “right to receive information” theory after the district court had already disposed of that claim in a separate merits order not itself appealed.

2. Summary of the Opinion

The Tenth Circuit (Judge Phillips, joined by Judge Hartz; Judge Moritz dissenting) held the district court abused its discretion by preliminarily enjoining any portion of § 24-157(B) for vagueness. The court interpreted Subsection B to prohibit school employees from teaching the eight concepts as correct principles, or requiring teachers to teach them as correct principles. Under that reading, the statute was not likely vague as to “require,” concepts (c) and (d), or any other challenged language.

The court vacated the preliminary injunction and remanded. It declined to reach the First Amendment right-to-receive-information issue because the plaintiffs failed to carry their burden to establish appellate jurisdiction to review a claim resolved in the separate Rule 12(c) order.

3. Analysis

3.1 Precedents Cited

The court’s decision is shaped by three main bodies of precedent: (i) preliminary-injunction standards, (ii) vagueness doctrine (including facial/as-applied frameworks and First-Amendment-adjacent strictness), and (iii) appellate jurisdiction principles in interlocutory appeals.

A. Preliminary injunction framework

  • Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008): The four-factor test—likelihood of success, irreparable harm, balance of equities, public interest—governed, and the panel focused on likelihood of success because the other factors were not challenged.
  • Denv. Homeless Out Loud v. Denver, 32 F.4th 1259 (10th Cir. 2022): Reiterated that each factor must be established.
  • 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): Abuse-of-discretion review applies to preliminary injunction decisions, but legal errors constitute abuse.
  • 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): Within the injunction appeal, legal questions underlying likelihood of success (here, vagueness) are reviewed de novo.

B. Vagueness doctrine and interpretive restraint

  • Wyo. Gun Owners v. Gray, 83 F.4th 1224 (10th Cir. 2023), quoting Hill v. Colorado, 530 U.S. 703 (2000): Defined 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): Applied “stricter standards” when speech interests are implicated and articulated the Tenth Circuit’s facial-vagueness framing (vague in the vast majority of applications / vagueness permeates the text).
  • United States v. Walker, 74 F.4th 1163 (10th Cir. 2023): Distinguished facial and as-applied vagueness challenges and emphasized factual context for as-applied claims.
  • Johnson v. United States, 576 U.S. 591 (2015): Used to reject the notion that a statute is saved from facial vagueness because some conduct plainly falls within it.
  • United States v. Williams, 553 U.S. 285 (2008): Reinforced that “perfect clarity” is not required and “borderline” applications do not make a statute vague.
  • Wash. State Grange v. Wash. State Repub. Party, 552 U.S. 442 (2008), and Boos v. Barry, 485 U.S. 312 (1988): Supported the proposition that statutes with a “plainly legitimate sweep” and “words of common understanding” withstand facial vagueness.
  • Fabrizius v. Dep't of Agric., 129 F.4th 1226 (10th Cir. 2025): Clarified as-applied vagueness and greater tolerance for civil penalties.
  • Bushco v. Shurtleff, 729 F.3d 1294 (10th Cir. 2013): Noted that a scienter requirement can mitigate vagueness.
  • Grayned v. City of Rockford, 408 U.S. 104 (1972): Emphasized that federal courts generally may not “narrow state laws,” but may “extrapolate” allowable meaning.
  • Green Room LLC v. Wyoming, 157 F.4th 1196 (10th Cir. 2025), quoting Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975): Instructed federal courts to tread carefully before striking a not-yet-state-court-interpreted statute and to uphold it if “readily subject” to a constitutional interpretation.
  • Epperson v. Arkansas, 393 U.S. 97 (1968): Cited as an example of First-Amendment import in curricular contexts (the panel assumed stricter vagueness scrutiny could apply, notwithstanding its jurisdictional refusal to decide the plaintiffs’ First Amendment claim).

C. Facial vagueness standard—rejecting Salerno in this setting

  • United States v. Salerno, 481 U.S. 739 (1987), and Dias v. City & Cnty. of Denv., 567 F.3d 1169 (10th Cir. 2009): The defendants urged the “no set of circumstances” test, but the panel explained it does not control when First-Amendment import is present (or when Supreme Court vagueness precedents like Johnson point otherwise).

D. Statutory interpretation under Oklahoma law

  • The panel relied on Oklahoma interpretive principles from Black Emergency Response Team v. Drummond, 571 P.3d 135 (Okla. 2025), McNeill v. City of Tulsa, 953 P.2d 329 (Okla. 1998), Toch, LLC v. City of Tulsa, 474 P.3d 859 (Okla. 2020), Brassfield v. State, 544 P.3d 938 (Okla. 2024), and Lang v. Erlanger Tubular Corp., 206 P.3d 589 (Okla. 2009): plain meaning, dictionary use, scheme coherence, and avoiding absurdity.

E. Interlocutory appellate jurisdiction and the appellant’s 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), and Raley v. Hyundai Motor Co., Ltd., 642 F.3d 1271 (10th Cir. 2011): The appellant bears the burden to show jurisdiction; absent clear jurisdiction, the court will not hypothesize a path to review.

F. The dissent’s counter-precedents

Judge Moritz grounded the dissent in limits on judicial “rewriting” and in curricular vagueness decisions:

  • United States v. Davis, 588 U.S. 445 (2019), and Grayned v. City of Rockford: Courts should not “fashion a new, clearer law” to replace a vague one.
  • Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489 (1982), and Sessions v. Dimaya, 584 U.S. 148 (2018) (Gorsuch, J., concurring): Harsher consequences (including livelihood-impacting civil penalties) justify stricter vagueness scrutiny; scienter can mitigate vagueness.
  • Keyishian v. Bd. of Regents, 385 U.S. 589 (1967): “Teach” restrictions in loyalty/subversion contexts were found vague because they could reach merely informing students about ideas.
  • Arce v. Douglas, 793 F.3d 968 (9th Cir. 2015): Upheld a restriction in part because terms like “promote” and “advocate” signaled intent, which Oklahoma’s statute lacks.
  • The dissent also cited a growing trial-court and state-court body of “divisive concepts” vagueness rulings: Santa Cruz Lesbian & Gay Cmty. Ctr. v. Trump, Loc. 8027 v. Edelblut, Honeyfund.com v. DeSantis, Pernell v. Fla. Bd. of Gov'rs, Tenn. Educ. Ass'n v. Reynolds, Jackson Fed'n of Teachers v. Fitch, and Mae M. v. Komrosky.
  • On injunction scope, the dissent noted Trump v. CASA, Inc. and referenced Pharm. Care Mgmt. Ass'n v. Mulready, Sanderson v. Hanaway, Kinney-Coastal Oil Co. v. Kieffer, and Iowa Migrant Movement for Just. v. Bird.

3.2 Legal Reasoning

A. The core interpretive move: “make part of a course” = teaching the concepts as correct principles

The majority’s outcome turned on a narrow reading of the operative clause: no school employee shall “require or make part of a course” the eight concepts. It reasoned that because the statute regulates “course” content and is framed around “teaching,” it most naturally prohibits (1) a teacher from teaching the listed concepts as true norms and (2) an administrator from requiring that instruction. This construction allowed the court to treat many feared applications—discussion of the concepts “in the abstract,” teaching about historical figures, and student-initiated conversations—as outside the statute’s likely meaning.

In reaching this conclusion, the majority relied heavily on the text of the eight concepts themselves—phrased as categorical assertions (e.g., “is inherently,” “should be,” “bears responsibility”)—to conclude that a violation requires presenting these assertions “as correct principles.”

B. Reversing the district court on “require”

The district court had found “require … the following concepts” an “illogical mismatch between verb and object.” The majority disagreed, treating “require” as simply capturing the administrative method of “making” concepts part of instruction: administrators can demand that teachers teach the prohibited concepts as correct principles.

C. Reversing the district court on concepts (c) and (d)

The district court viewed “treatment” and “treat” in concepts (c) and (d) as both broad and ambiguous, potentially sweeping in contested policy matters (e.g., affirmative action) and accepted legal norms (e.g., sex-segregated youth sports). The majority characterized that as a “breadth, not vagueness” concern (StreetMediaGroup, LLC v. Stockinger) and held that, in context, the concepts are clear because they prohibit only teaching as correct principles that someone “should be discriminated against or receive adverse treatment” due to race/sex, or that members of one race/sex cannot/should not treat others without regard to race/sex.

The majority also minimized the effect of concept (d)’s “triple negative” by observing that statutes frequently require interpretation and that conventional grammar resolves multiple negatives (United States v. Jereb).

D. The “Academic Standards” safe harbor does not create vagueness (majority)

Plaintiffs argued that Subsection B’s opening sentence—“shall not prohibit the teaching of concepts that align to the Oklahoma Academic Standards”—creates tension and uncertainty. The majority rejected the premise that this “deepens” vagueness, treating the safe harbor as independent of (and not altering) the eight prohibited concepts.

E. Jurisdictional holding: interlocutory review of the injunction does not automatically open review of an unappealed merits dismissal

Although the injunction order (BERT II) referenced the merits order (BERT I) in declining to enjoin on First Amendment grounds, the panel refused to reach the plaintiffs’ First Amendment “right to receive information” argument because that claim had been decided in BERT I, which was not appealed (and the plaintiffs did not show a jurisdictional route to review it). Citing SeedX, Inc. v. Lincoln Strategy Grp. LLC and Raley v. Hyundai Motor Co., Ltd., the court emphasized that appellants must articulate appellate jurisdiction; the court will not “guess” a theory.

3.3 Impact

A. Immediate practical effect in Oklahoma

  • The preliminary injunction was vacated, restoring Oklahoma’s ability (pending further proceedings) to enforce § 24-157(B) as written and its implementing regime, including educator-licensing consequences under Okla. Admin. Code § 210:10-1-23(j).
  • The ruling signals that, at least at the preliminary-injunction stage, the Tenth Circuit views the statute as aimed at prohibiting endorsement/affirmation of discriminatory propositions, not discussion of history, theory, or controversy as such.

B. Doctrinal impact: vagueness analysis through “most likely interpretation”

The opinion underscores a litigation-shaping principle: for likelihood-of-success on vagueness, courts should assess the statute’s “most likely interpretation” (the majority cited Trump v. Illinois) and uphold the statute if that interpretation is reasonably available under state interpretive rules and avoids constitutional infirmity (Green Room LLC v. Wyoming). This approach can make preliminary injunctions harder to obtain where a narrowing construction is plausible—even absent prior state-court interpretive precedent.

C. Wider “divisive concepts” litigation

The decision likely becomes a leading circuit precedent for defending similar “divisive concepts” restrictions against vagueness challenges, particularly in jurisdictions receptive to textual/ordinary-meaning narrowing. At the same time, the dissent highlights a widening split in judicial instincts: whether such statutes can be constitutionally “saved” by reading them as prohibiting only “endorsement,” versus being impermissibly vague because classroom “teaching” necessarily includes discussion, questioning, and interpretation (echoing Keyishian v. Bd. of Regents).

D. Appellate practice impact: jurisdiction must be argued, not assumed

The court’s refusal to reach the First Amendment right-to-receive-information issue is a procedural warning: litigants cannot assume that appealing an injunction order under 28 U.S.C. § 1292(a)(1) permits review of a separate, unappealed merits dismissal; they must brief a jurisdictional pathway (e.g., final judgment, Rule 54(b), or 28 U.S.C. § 1292(b)).

4. Complex Concepts Simplified

  • “Void for vagueness” (Fourteenth Amendment): A law is unconstitutional if ordinary people cannot tell what it forbids, or if it gives officials too much discretion to enforce it selectively (Wyo. Gun Owners v. Gray; Hill v. Colorado).
  • Facial vs. as-applied vagueness: A facial challenge says the statute is unclear in most applications; an as-applied challenge says it is unclear when applied to specific conduct (Dr. John's, Inc. v. City of Roy; United States v. Walker).
  • Preliminary injunction posture: The court is not finally deciding constitutionality; it is assessing whether plaintiffs are likely to win later (Winter v. Nat. Res. Def. Council).
  • “Narrowing construction” limits: Federal courts can interpret a state statute using the state’s interpretive rules, but they generally cannot rewrite it (Grayned v. City of Rockford). The dissent argued the majority crossed that line; the majority maintained it was applying plain text.
  • Interlocutory appeal jurisdiction: An appeal from an injunction order is allowed under 28 U.S.C. § 1292(a)(1), but that does not automatically permit review of every other ruling in the case; appellants must show why the appellate court has power to decide each issue (SeedX, Inc. v. Lincoln Strategy Grp. LLC; Raley v. Hyundai Motor Co., Ltd.).

5. Conclusion

Black Emergency Response Team v. Drummond establishes a consequential interpretive and procedural blueprint in challenges to K‑12 “divisive concepts” statutes: (1) § 24-157(B) is not likely void for vagueness when read to bar only teaching (or requiring the teaching of) the listed concepts as correct principles; and (2) interlocutory injunction appeals will not be used to reach unappealed merits dismissals absent a clearly articulated jurisdictional basis. The majority’s construction favors enforceability and narrow application; the dissent frames that same move as impermissible judicial repair work that leaves teachers uncertain in real classrooms.