(CN) - Oklahoma teachers can't discuss the role of race and sex in the world with their students without fear of retaliation, an attorney for the ACLU argued Tuesday, urging a 10th Circuit panel to enjoin a state law banning the teaching of certain "divisive concepts."

House Bill 1775 was passed in 2021 amid a national firestorm over critical race theory, but quickly drew challenges from several teachers, unions and civil rights organizations. 

The law was partially blocked in 2024, with U.S. District Judge Charles Goodwin, an appointee of Donald Trump, finding the plaintiffs were likely to succeed on some claims while the state had stronger arguments on others. In oral arguments during cross appeals Tuesday, American Civil Liberties Union attorney Emerson Sykes said the law should be enjoined in its entirety due to vagueness, as it unconstitutionally restricts free speech and proper conceptual teaching of topics from literature to history. 

Sykes added the statute's central prohibition - that schools may not "require or make part of a course" any of eight "divisive concepts" - is impossible for teachers to understand and teachers have no notice whether answering a student's question could be treated as "making" a prohibited idea part of the course. He said real-world enforcement shows the state reads the law broadly and teachers are chilling themselves by avoiding race and sex topics altogether.

"They want to teach literature that includes themes about race and sex, they want to teach about the historical existence of these ideas, but how can one give appropriate detail to what these concepts actually mean without running afoul of the concepts within each one?" Sykes asked the three-judge panel. "The central question before this court is, what does it mean to make part of a course eight prohibited concepts? And the answer is, it's impossible to know."

U.S. Circuit Judge Gregory Alan Phillips, a Barack Obama appointee, repeatedly asked Sykes for an example of a concrete classroom scenario where a teacher would genuinely be unsure if they were violating the law. Sykes suggested a teacher may refrain from offering, in the context of slavery, that some people may believe that one race is inherently superior to another. But Phillips pushed back, arguing that describing racist beliefs historically is not the same as teaching those beliefs as true.

For the state, attorney William Flanagan said the law is a narrow, clear restriction on teachers from endorsing specific discriminatory concepts, not a broad ban on teaching about race, racism, or controversial history. He said Oklahoma teachers remain free to discuss racism, Jim Crow, the KKK, the Nazi party, the Tulsa race massacre and other true aspects of history. But they cannot endorse the prohibited concepts as correct or teach that one race or sex is inherently superior to another.

"This case is about the state of Oklahoma's authority to ensure that its teachers and its public schools do not endorse specific discriminatory concepts," Flanagan said. "The statute does not prohibit teaching about racism. It does not restrict the use of minority authors, and it does not even restrict teachers from presenting competing viewpoints on contemporary issues."

The panel probed whether Flanagan's narrow reading of HB 1775 matches classroom reality or the statute's text. U.S. Circuit Judge Nancy L. Moritz, another Obama appointee, focused on the practical dilemma for teachers and repeatedly challenged Flanagan's claim that teachers can simply present research without endorsing it, noting this distinction appears nowhere in the statute and demands complex, onthespot judgments.

"I think most teachers would think 'making part of a course' is the engagement with the student and responding to questions and having a discussion and trying to explain concepts, as opposed to forcing it upon them, which is what you're suggesting, is not okay," Moritz said. "How does that teacher respond and be able to sleep at night?"

Flanagan emphasized that a teacher may present research and competing viewpoints so long as the teacher does not affirm the concept as true or urge students to believe it. He also drew a line between describing ideas or studies and teaching a prohibited concept "as true" or endorsing it, saying the statute only outlaws the latter. 

On remand, Sykes encouraged the panel to consider the Supreme Court's guidance on vagueness defined in Johnson vs. United States and declare the law unconstitutional. Separately, 18 conservative states filed a brief supporting the law, arguing the First Amendment does not give teachers or students the right to a curriculum of their choice. 

U.S. Circuit Judge Harris L. Hartz, a George W. Bush appointee, rounded out the panel, which took the case under submission without indicating when it would rule.

Source: Courthouse News Service