Tenth Circuit Narrows Oklahoma H.B. 1775 to a Ban on Teaching “Divisive Concepts” as Correct Principles—and Vacates Vagueness Injunction

1) Introduction

Oklahoma’s H.B. 1775 (2021) restricts certain race- or sex-based “concepts” in public K–12 education. Subsection B provides that no “teacher, administrator or other employee” shall “require or make part of a course” eight enumerated “concepts” (e.g., inherent superiority, collective racial/sex responsibility, or that individuals “should feel discomfort, guilt, anguish” because of race or sex). Violations may trigger educator licensure suspension or revocation under implementing regulations.

A coalition of teachers, students, parents, and organizations (including the Oklahoma NAACP conference and AIM Indian Territory) challenged subsection B as unconstitutional—principally as (i) unconstitutionally vague under the Fourteenth Amendment and (ii) violative of students’ First Amendment right to receive information. The district court: (a) disposed of K–12 First Amendment claims on the pleadings; (b) preliminarily enjoined enforcement of three portions of subsection B on vagueness grounds (the word “require,” and concepts (c) and (d)); and (c) declined to enjoin on the First Amendment theories.

On cross-appeals, the Tenth Circuit addressed whether the district court properly found a likelihood of success on vagueness for any portion of subsection B and whether it could review the First Amendment right-to-receive-information issues in this interlocutory posture.

2) Summary of the Opinion

3) Analysis

3.1 Precedents Cited

A. Preliminary injunction framework

• Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008): Provided the four-factor test for preliminary injunctions (likelihood of success, irreparable harm, balance of equities, public interest). The panel focused on likelihood of success because the other factors were not contested on appeal.
• Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792 (10th Cir. 2019): Set the abuse-of-discretion standard for reviewing preliminary injunction rulings.
• United States v. Kirby, 161 F.4th 1208 (10th Cir. 2025): Clarified what constitutes abuse of discretion—legal error, clearly erroneous factfinding, or clear error in judgment.
• 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): Supported de novo review of the underlying legal question embedded in the likelihood-of-success analysis (here, whether the statute is vague).
• Denv. Homeless Out Loud v. Denver, 32 F.4th 1259 (10th Cir. 2022): Reinforced that all Winter factors must be satisfied for an injunction to issue.

B. Vagueness doctrine (definition, posture, and interpretive constraints)

• Wyo. Gun Owners v. Gray, 83 F.4th 1224 (10th Cir. 2023): Supplied the two classic prongs of vagueness—lack of fair notice and risk of arbitrary/discriminatory enforcement. Also emphasized the Constitution does not demand “impossible standards of specificity” and that general legal statements can provide fair warning.
• Hill v. Colorado, 530 U.S. 703 (2000): Quoted for the two-prong vagueness formulation, via Wyo. Gun Owners.
• Dr. John’s, Inc. v. City of Roy, 465 F.3d 1150 (10th Cir. 2006): Provided the “stricter standards” principle for laws touching First Amendment interests and the Tenth Circuit’s test for facial vagueness (vague in the vast majority of applications; vagueness permeates the text). The panel assumed heightened scrutiny applied, even while declining to reach the First Amendment merits.
• United States v. Walker, 74 F.4th 1163 (10th Cir. 2023): Recognized facial and as-applied vagueness challenges and highlighted the factual dimension of 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 merely because some conduct clearly falls within it; also discussed tension with a rigid “no set of circumstances” approach.
• United States v. Williams, 553 U.S. 285 (2008): Emphasized that perfect clarity is not required even for laws affecting expression and that borderline cases do not equal vagueness.
• Wash. State Grange v. Wash. State Repub. Party, 552 U.S. 442 (2008) and Boos v. Barry, 485 U.S. 312 (1988): Cited for the proposition that a law with a “plainly legitimate sweep” and words of common understanding is not facially vague.
• Fabrizius v. Dep’t of Agric., 129 F.4th 1226 (10th Cir. 2025): Used to stress that vagueness is assessed in light of the conduct applied (for as-applied challenges), that borderline factual questions are insufficient, and that civil penalties invite greater tolerance than criminal ones.
• Bushco v. Shurtleff, 729 F.3d 1294 (10th Cir. 2013): Recognized scienter can mitigate vagueness (especially notice), but the panel used it to explain that lack of scienter does not itself establish vagueness.
• Grayned v. City of Rockford, 408 U.S. 104 (1972): Provided two distinct constraints: courts may not “narrow” state statutes beyond their allowable meaning, but can interpret; and enforcement can clarify boundaries as long as the statute as a whole clearly prohibits certain conduct.
• Green Room LLC v. Wyoming, 157 F.4th 1196 (10th Cir. 2025) and Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975): Instructed federal courts to tread carefully in declaring un-interpreted state statutes unconstitutional; invalidation is appropriate only if not “readily subject” to a constitutional interpretation.

C. State-law interpretation (how the federal court selects meaning)

• United States v. Gaudreau, 860 F.2d 357 (10th Cir. 1988) and Stokes v. United States, 967 F.3d 1034 (10th Cir. 2020): Required the panel to interpret Oklahoma law as the Oklahoma Supreme Court would, using Oklahoma interpretive rules.
• Black Emergency Response Team v. Drummond, 571 P.3d 135 (Okla. 2025): Supplied Oklahoma’s text-first approach and confirmed certification is discretionary; also emphasized that federal courts must decide state-law questions necessary to judgment. (The Oklahoma Supreme Court declined to answer the certified questions about the meaning of “require,” and concepts (c) and (d).)
• 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); Lang v. Erlanger Tubular Corp., 206 P.3d 589 (Okla. 2009): Cited for Oklahoma canons—plain meaning, dictionary use, reading the statute as a cohesive scheme, avoiding absurdity, and declining to resort to extrinsic canons when text is unambiguous.

D. Appellate jurisdiction and waiver principles

• SeedX, Inc. v. Lincoln Strategy Grp. LLC, 158 F.4th 1166 (10th Cir. 2025) and Chieftain Royalty Co. v. SM Energy Co., 100 F.4th 1147 (10th Cir. 2024): Established that appellants bear the burden to show appellate jurisdiction, and the court may not proceed without assurance it exists.
• Raley v. Hyundai Motor Co., Ltd., 642 F.3d 1271 (10th Cir. 2011): The panel relied on this admonition that it is not the court’s job to “conjure up” jurisdictional theories when the appellant does not provide them.
• United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019): Applied to deem certain late-raised arguments waived (here, issues about the implementing rule and its clarity).
• Good v. Dep’t of Educ., 121 F.4th 772 (10th Cir. 2024): Used to reject defendants’ waiver argument on vagueness as to certain concepts because the district court resolved those legal issues on the merits.

3.2 Legal Reasoning

A. The panel’s controlling statutory interpretation: “teach (or require) as correct principles”

The decision’s centerpiece is interpretive: the court reads subsection B’s phrase “require or make part of a course” as targeting the act of teaching the listed concepts as true/correct principles (and, in the case of “require,” administrative compulsion that a teacher teach them as such). The court supported this in several steps:

• Text and role-based context: Because the actors are teachers/administrators/employees and the object is “part of a course,” the court treated “course” as inherently instructional and thus “make part of a course” as “teach.”
• Structural cue from the “Academic Standards” clause: Subsection B begins with a statement that it “shall not prohibit the teaching of concepts that align to the Oklahoma Academic Standards.” The panel treated this as confirming that subsection B is about regulating what is taught (not what is merely mentioned).
• Grammatical framing of the eight “concepts”: The panel emphasized that each enumerated item is phrased as an unqualified discriminatory proposition (e.g., “one race or sex is inherently superior”), and inferred the statute prohibits presenting those propositions as correct.
• Rejection of plaintiffs’ broader chilling-effect reading: The court concluded that discussing the concepts “in the abstract” or in connection with historical/popular figures is not prohibited by the statute’s language, as properly read.

B. Vagueness analysis under that interpretation

Having fixed the statute’s meaning, the court held plaintiffs were not likely to show vagueness (even under a more stringent vagueness test assumed due to First Amendment “import”):

• “Make part of a course”: Not vague. Ordinary educators can understand what it means to teach (or include in instruction) a proposition as true; and enforcement is sufficiently constrained by the specific, enumerated discriminatory statements.
• “Require”: Though “awkward,” not vague. The court treated it as addressing administrative demands that a teacher teach the concepts as correct principles—i.e., a parallel means of “making” the concept part of a course.
• Concepts (c) and (d): The district court had found “treatment”/“treat” too broad and the triple-negative phrasing cumbersome; the panel responded that breadth is not vagueness and that judicial interpretation of syntax does not render a statute void. The panel also treated the contested words as clear when tethered to teaching the discriminatory propositions as correct.
• Academic Standards “align to” clause: The panel found it did not “deepen” vagueness because it does not alter the meaning of the prohibited concepts; it simply preserves teaching aligned with standards (as a general protection) while still prohibiting the eight discriminatory propositions.
• Scienter: The panel rejected the argument that lack of scienter makes the statute vague, emphasizing scienter can mitigate vagueness but is not required to avoid vagueness; and it reasoned it would be difficult to “accidentally” teach these discriminatory propositions as correct.

C. Appellate jurisdiction: why the First Amendment right-to-receive claim was not reached

Although the appeal was from the preliminary injunction order (reviewable under 28 U.S.C. § 1292(a)(1)), the panel refused to reach the right-to-receive-information argument because the underlying claim had been resolved in a separate merits order (judgment on the pleadings), and plaintiffs did not adequately brief a jurisdictional theory permitting interlocutory review of that merits disposition. Invoking the appellant’s burden to demonstrate jurisdiction, the court dismissed that portion of the appeal and noted plaintiffs may raise it after final judgment under 28 U.S.C. § 1291.

D. The dissent’s critique (and what it signals)

Judge Moritz dissented on vagueness, arguing the majority impermissibly “grafted” a limiting principle (“as correct principles”) not present in the statute’s plain language. The dissent emphasized (i) teaching encompasses discussion, questions, and exploration, (ii) the statute’s Academic Standards “safe harbor” creates a “double bind,” and (iii) other courts addressing similar “divisive concepts” laws have found vagueness. The majority responded (principally in text and footnotes) that those decisions did not analyze the statute under the majority’s “plain-text” narrowing read.

3.3 Impact

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

This opinion supplies a template for sustaining similar statutes against vagueness attacks: interpret “require or make part of a course” as prohibiting the affirmative act of presenting enumerated discriminatory propositions as correct/true principles, rather than prohibiting discussion, historical instruction, or debate. That interpretive move is likely to be central in future litigation over comparable state laws modeled on the same “divisive concepts” formulations.

B. Litigation and enforcement consequences in Oklahoma

• Immediate consequence: the preliminary injunction against enforcement was vacated, permitting Oklahoma to enforce subsection B pending further proceedings, subject to later merits adjudication.
• Practical enforcement constraint (as a matter of federal-law meaning): any enforcement theory premised on mere mention, discussion, or historical teaching (without teaching the discriminatory proposition as correct) is in tension with the Tenth Circuit’s construction, and would invite further litigation.

C. Appellate practice consequence: jurisdictional briefing discipline

The court’s jurisdiction holding is a cautionary precedent: even in an interlocutory appeal from an injunction order, appellants must squarely articulate how the court may reach issues that were decided in a separate merits order (especially if that order is not final and not certified). Failure to do so may forfeit interlocutory review even of important constitutional questions.

4) Complex Concepts Simplified

• “Void for vagueness”: A law is unconstitutional if it is so unclear that ordinary people cannot tell what it forbids (fair notice), or if it is so open-ended that officials can enforce it arbitrarily.
• Facial vs. as-applied vagueness: “Facial” means the law is unclear in most applications; “as-applied” means the law is unclear when applied to a specific person’s real-world conduct (often fact-intensive).
• Preliminary injunction: A temporary order stopping enforcement while a case proceeds. The key factor here was whether plaintiffs were likely to win on the merits.
• Interlocutory appellate jurisdiction (28 U.S.C. § 1292(a)(1)): Allows appeals from injunction orders before final judgment—but does not automatically open the door to every issue decided elsewhere in the case unless a proper jurisdictional basis is shown.
• “Certification” to a state supreme court: A federal court may ask a state supreme court to clarify uncertain state-law questions. Here, the Oklahoma Supreme Court declined because answering would not avoid the federal constitutional questions and would be advisory-like.

5) Conclusion

The Tenth Circuit’s published decision sets a consequential interpretive rule: Oklahoma’s H.B. 1775 subsection B is read as a targeted prohibition on teaching (or requiring teachers to teach) eight listed discriminatory propositions as correct principles, not as a broad gag on discussing contested ideas, history, or current events. With that construction, the court concluded plaintiffs were unlikely to prove vagueness and vacated the preliminary injunction in full. Separately, the court underscored a procedural lesson with substantive stakes: appellate courts will not reach constitutional claims on interlocutory appeal absent a clearly articulated jurisdictional pathway—placing the burden squarely on appellants to justify review.