“Teach as Correct Principles” Saving Construction: H.B. 1775’s K–12 “Divisive Concepts” Ban Held Not Vague Under the Fourteenth Amendment

1. Introduction

Black Emergency Response Team v. Drummond is a published decision of the United States Court of Appeals for the Tenth Circuit (Sept. 9, 2026) addressing the constitutionality—at the preliminary-injunction stage—of Oklahoma’s H.B. 1775, specifically Okla. Stat. tit. 70, § 24-157(B), which restricts certain race- or sex-based “concepts” in K–12 instruction.

The plaintiffs (teachers, students, parents, and advocacy organizations) argued that subsection B is unconstitutionally vague and also violates students’ First Amendment right to receive information. The district court partially enjoined enforcement on vagueness grounds (targeting the word “require” and two listed concepts), but rejected First Amendment preliminary-injunction relief. On cross-appeals, the Tenth Circuit vacated the injunction and remanded.

Core issues: (i) whether subsection B is likely void for vagueness under the Fourteenth Amendment; and (ii) whether the court could reach plaintiffs’ First Amendment “right-to-receive-information” theory on interlocutory appeal.

2. Summary of the Opinion

  • The Tenth Circuit held the district court abused its discretion by preliminarily enjoining any portion of subsection B for vagueness.
  • The panel adopted a clarifying construction: subsection B prohibits school employees from teaching the prohibited concepts as correct principles or requiring teachers to do so.
  • Under that reading, the statute provides adequate notice and constraints against arbitrary enforcement; thus plaintiffs were not likely to succeed on their vagueness claims.
  • The court declined to address the First Amendment right-to-receive-information claims because plaintiffs failed to establish appellate jurisdiction to review those claims in this interlocutory posture.
  • The court vacated the preliminary injunction and remanded for further proceedings.

3. Analysis

3.1. Precedents Cited

The decision is built from three doctrinal blocks: (i) preliminary injunction standards; (ii) vagueness doctrine; and (iii) interlocutory appellate jurisdiction principles. The court’s use of precedent is largely conventional, but its application produces a consequential interpretive narrowing of the statute.

A. Preliminary-injunction framework

  • Winter v. Nat. Res. Def. Council: Supplies the four-factor test (likelihood of success, irreparable harm, balance of equities, public interest), and the court emphasized that each factor must be established. Here, because only “likelihood of success” was contested on appeal, the panel focused there.
  • Denv. Homeless Out Loud v. Denver: Reinforces that an injunction issues only if all factors are met; used to justify narrowing review to the disputed “merits-likelihood” factor.
  • Free the Nipple-Fort Collins v. City of Fort Collins and United States v. Kirby: Establish the “abuse of discretion” standard and explain that legal errors embedded in a preliminary-injunction order constitute abuse of discretion.
  • Derma Pen, LLC v. 4EverYoung Ltd. and United States v. Jimenez-Marquez: Support de novo review of the underlying legal question (likelihood of success on a vagueness theory) within the abuse-of-discretion framework.

B. Vagueness doctrine (definition, facial/as-applied, and interpretive constraints)

  • Wyo. Gun Owners v. Gray (quoting Hill v. Colorado): Provides the two independent vagueness rationales—lack of fair notice and risk of arbitrary/discriminatory enforcement. This is the court’s organizing definition.
  • Dr. John’s, Inc. v. City of Roy: Used for stricter vagueness review in areas of First Amendment import; the panel assumed (without deciding the merits of the First Amendment claims) that heightened vagueness scrutiny applied.
  • United States v. Walker: Recognizes facial and as-applied vagueness challenges; the panel also drew on Walker to explain the pre-enforcement posture’s interaction with facial review.
  • United States v. Salerno, Dias v. City & Cnty. of Denv., and Johnson v. United States: Address the proper facial-vagueness standard; the panel rejected a rigid “no set of circumstances” approach in this First-Amendment-adjacent setting and aligned with Johnson’s critique of Salerno for vagueness.
  • United States v. Williams: Supplies the “perfect clarity” principle and the idea that borderline cases do not render a statute vague.
  • Wash. State Grange v. Wash. State Repub. Party and Boos v. Barry: Support the proposition that a statute with a “plainly legitimate sweep” and “words of common understanding” is not facially vague.
  • Fabrizius v. Dep’t of Agric.: Used for the “as applied” formulation and the greater tolerance for imprecision in civil-penalty regimes, as well as the point that factual borderline questions do not equal vagueness.
  • Bushco v. Shurtleff: Provides the principle that a scienter requirement can mitigate vagueness; the panel invoked this to say that the absence of scienter does not itself create vagueness.
  • United States v. Gaudreau, Stokes v. United States: Govern the federal court’s obligation to interpret state law as the state supreme court would.
  • Grayned v. City of Rockford, Green Room LLC v. Wyoming (quoting Erznoznik v. City of Jacksonville): Emphasize interpretive restraint and federalism caution: federal courts should not rewrite state laws, should “tread especially carefully,” and should avoid invalidation if a constitutional reading is “readily subject.” The majority’s approach relied heavily on this “constitutional interpretation if available” theme.

C. Interlocutory appellate jurisdiction and party burden

  • SeedX, Inc. v. Lincoln Strategy Grp. LLC: Establishes that appellants bear the burden of demonstrating appellate jurisdiction.
  • Chieftain Royalty Co. v. SM Energy Co.: Reinforces that without assurance of jurisdiction, the appellate court cannot proceed.
  • Raley v. Hyundai Motor Co., Ltd.: Supplies the key rhetorical and doctrinal point: the court will not “conjure up” jurisdictional theories. This precedent drove the dismissal of plaintiffs’ attempt to secure review of First Amendment claims.

3.2. Legal Reasoning

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

The opinion resolves vagueness primarily through interpretation. It reads subsection B to target only the act of teaching the listed concepts as correct principles (or requiring that teaching). On this view:

  • “make part of a course” means “teach” in a course context; and given the nature of the eight listed concepts, it means teaching them as true/endorsed propositions rather than discussing them as ideas, history, or debate.
  • “require” is awkward but intelligible as applied to administrators who demand that teachers teach those propositions.

The majority stressed that the eight concepts are framed as unqualified assertions (e.g., “one race or sex is inherently superior”), which—when inserted into the operative “require or make part of a course” clause—signals proscription of endorsement, not mere mention or contextual discussion.

B. Application to the district court’s injunction

The district court had found likely vagueness in (i) the word “require” and (ii) concepts (c) and (d) due to the breadth of “treatment/treat.” The panel reversed those findings, reasoning that:

  • Breadth alone is not vagueness; the key is whether the law is understandable and constrains enforcement.
  • With the “teach-as-correct-principles” interpretation, a teacher does not violate subsection B by discussing historical events, social theories, or public controversies; violation requires affirmatively presenting the discriminatory concepts as correct.
  • The Academic Standards clause does not introduce uncertainty about what the eight concepts prohibit; it is treated as a separate permission that does not expand the ban.

C. Jurisdictional reasoning on the First Amendment “right to receive information” claims

Plaintiffs attempted to obtain interlocutory review of the preliminary-injunction denial tied to First Amendment “right-to-receive-information” theories. The panel refused because those claims had already been disposed of on the pleadings in the companion merits order and plaintiffs did not adequately brief a jurisdictional pathway to review that merits disposition via the injunction appeal. Invoking SeedX, Inc. v. Lincoln Strategy Grp. LLC and Raley v. Hyundai Motor Co., Ltd., the court treated the jurisdictional deficit as dispositive.

3.3. Impact

A. Doctrinal impact on vagueness challenges to “divisive concepts” statutes

The decision’s practical precedent is its interpretive rule: similar “require or make part of a course” bans may survive vagueness scrutiny if courts construe them as prohibiting only instruction that endorses the listed discriminatory propositions as correct. This construction narrows chilling-effect arguments that rest on the fear that educators cannot discuss controversial topics at all.

B. Litigation impact: shifting the battlefield

By removing vagueness as the basis for preliminary relief (on this record and construction), the opinion likely pushes future challengers toward: (i) record-developed as-applied claims focused on enforcement patterns; (ii) rule/administrative guidance challenges; and/or (iii) First Amendment theories where jurisdiction and merits are cleanly preserved for appeal after final judgment.

C. Institutional impact: appellate discipline on interlocutory jurisdiction

The court’s refusal to reach the right-to-receive-information issue underscores a procedural lesson: appellants must explicitly establish the jurisdictional route for reviewing companion merits determinations when appealing an injunction order.

4. Complex Concepts Simplified

  • Void for vagueness: A law is unconstitutional if ordinary people cannot tell what it forbids or if it gives enforcers too much discretion to punish selectively.
  • Facial vs. as-applied vagueness: A facial challenge claims the law is unclear in most applications; an as-applied challenge claims it is unclear in the plaintiff’s specific situation.
  • Preliminary injunction: A temporary order stopping enforcement while a case proceeds; the key merits question is whether the plaintiff is likely to win later.
  • Interlocutory appeal (28 U.S.C. § 1292(a)(1)): Allows appeals from injunction orders before final judgment—but does not automatically open the door to review all other merits rulings unless a valid jurisdictional basis is shown.
  • “Saving” or narrowing construction: Courts often choose a reasonable interpretation that avoids constitutional invalidation, but they may not rewrite statutes; this case turns on whether “teach as correct principles” is interpretation or rewriting (a point highlighted by the dissent).

5. Conclusion

Black Emergency Response Team v. Drummond establishes a significant Tenth Circuit approach to vagueness challenges against curricular restrictions: subsection B is not likely vague when read to prohibit only teaching the listed discriminatory concepts as correct principles (or requiring such teaching). The decision vacates preliminary injunctive relief and channels the dispute back to the district court for further proceedings, while also signaling rigorous insistence that parties carry their burden to demonstrate appellate jurisdiction in interlocutory appeals.