Complaint: “This is an action brought by Oklahoma students and educators challenging the state legislature’s unprecedented and unconstitutional censorship of discussions about race and gender in schools ….”
It was inevitable that state laws relating to Critical Race Theory would be challenged. The laws are not uniform, but Oklahoma is the first test.
When these laws are challenged by groups like the ACLU, they are very careful to pick what they consider the most vulnerable law first, and to find sympathetic plaintiffs. We have seen that in regard to state laws regarding the anti-Israel boycott (BDS). Overly broad legislation may capture headlines at the time, but if it doesn’t survive judicial scrutiny substantial damage to the cause is done.
Knowing that experience and understanding how these lawsuits work, I have long advocated a cautious approach to laws regarding CRT, including limiting the laws to K-12, not “banning” ideas, and focusing on educational transparency to equip parents to fight curriculum battles locally.
I spoke on these topics at the Education Task Force of the American Legislative Exchange Counsel in late July 2021, “The fight over Critical Race Theory in education is a fight in many ways for our national survival” (full transcript at link)(emphasis added):
So, what I want to talk about is what is in some of the things, and there’s a brochure on your table that I prepared….
What you can do is you can enable systems that will outlive your legislative session. And I’ve heard some of the things that have taken place in other states on other issues. You can put in place systems that will help avoid this problem, so it doesn’t come up every year….
In terms of these durable systems, probably the single best thing you could do now is transparency in education. There are tens of thousands, hundreds of thousands, of parents out there who cannot find out what is being taught in their schools. They have to serve public records requests, which take time. And then you get told, you’ve got to pay thousands of dollars to find out what’s being taught in the school. And that is something that you can do….
Focus on K-12, not higher education. Like I said, K-12 has always been subject to state regulation. Students are forced to be there by force of law. You have a captive audience. You can much more easily make the case for regulating K-12.
For higher education, I would say, put that aside for the time being. It’s a much tougher issue. The concept of academic freedom and free speech has a much greater basis in higher ed than it does in K-12.
Oklahoma passed legislation that covers both K-12 and higher education, and bans certain concepts from being taught, with language focused on discriminatory and racist stereotyping.
My statement on HB 1775. pic.twitter.com/2EgMh7A7xZ
— Governor Kevin Stitt (@GovStitt) May 7, 2021
It’s now being challenged by a coalition of groups represented by the ACLU. The lead plaintiff is the “Black Emergency Response Team,” joined by, among others, Oklahoma chapters of the American Association of University Professors and the NAACP.
From the introduction to the Complaint:
1. This is an action brought by Oklahoma students and educators challenging the state legislature’s unprecedented and unconstitutional censorship of discussions about race and gender in schools through the passage of House Bill 1775 (codified as 70 O.S. § 24-157 (2021)) (hereinafter “H.B. 1775” or “the Act”) and its implementing regulations (codified as Okla. Admin. Code § 210: 10-1-23) (hereinafter “the Rules”).
2. H.B. 1775 severely restricts discussions on race and gender in Oklahoma’s elementary, secondary, and higher education schools without any legitimate pedagogical justification, using language that is simultaneously sweeping and unclear. Public universities are prohibited from offering “any orientation or requirement” that presents “any form of race or sex stereotyping” or “bias on the basis of race or sex,” leaving educators and students to guess at the scope of such broad, undefined terms and how this impacts the treasured principle of academic freedom in the state’s universities. The Act further prohibits elementary and secondary school teachers from “mak[ing] part of a course” a list of eight banned “concepts” copied verbatim from an executive order issued in September 2020 by then-President Trump, which a federal court ultimately blocked as impermissibly vague. The Act’s vague, overbroad, and viewpoint discriminatory provisions leave Oklahoma educators with an impossible—and unconstitutional—choice: avoid topics related to race or sex in class materials and discussions or risk losing their teaching licenses for violating the law.
9. H.B. 1775 is an unlawful intrusion by politicians into the classroom—without input from educators—that dictates not just what can be taught, but how teachers must teach in service of an avowedly political agenda. By seeking to “cast a pall of orthodoxy over the classroom” based on partisan and racial interests, the Act impinges on the “transcendent value” of academic freedom that courts safeguard to preserve the very foundations of democracy. Keyishian, 385 U.S. at 603.
10. Under the rules promulgated by the Oklahoma State Board of Education (hereinafter “SBE”) pursuant to the Act, teachers and educational institutions face severe sanctions for violating the law’s unclear parameters, including the loss of education licenses, certificates, and accreditation. And the State has declared open season on all elementary and secondary school educators and educational institutions by allowing any member of the public to file a complaint with their district or the State Board of Education.
11. This type of state censorship is wholly unconstitutional. H.B. 1775 must be struck down on its face and as applied under the First and Fourteenth Amendments because the U.S. Constitution firmly rejects the Act’s improper racial and partisan motives and methods for effectuating censorship. H.B. 1775 silences speech through its vague, overbroad and viewpoint discriminatory terms, and intentionally targets and denies access to ideas aimed at advancing the educational and civic equality of historically marginalized students because of the legislators’ own discomfort and disagreement with certain viewpoints.
John Sexton makes some good points about the claims in the lawsuit, particularly as to claims that the statute prevents the teaching of history:
Here’s the text of HB 1775. It does in fact state, “Nothing in this rule shall be construed to prevent the teaching of history, social studies, English language arts, biology or any other subject matter area consistent with the Oklahoma Academic Standards as adopted and approved by the State Board of Education and approved by the Oklahoma Legislature.” Here’s the full text of what it aims to achieve:
It shall be the policy of the Oklahoma State Board of Education to prohibit discrimination on the basis of race or sex in the form of bias, stereotyping, scapegoating, classification, or the categorical assignment of traits, morals, values, or characteristics based solely on race or sex. Public schools in this state shall be prohibited from engaging in race or sex-based discriminatory acts by utilizing these methods, which result in treating individuals differently on the basis of race or sex or the creation of a hostile environment.
Nothing there about not teaching the history of Oklahoma or certain books….
The Attorney General of Oklahoma tweeted:
The legislature and Governor were wise to prevent the teaching of our children that one race or sex is inherently superior to another race or sex. I look forward to defending HB1775 against these activists who do not share our Oklahoma values.
The legislature and Governor were wise to prevent the teaching of our children that one race or sex is inherently superior to another race or sex. I look forward to defending HB1775 against these activists who do not share our Oklahoma values. https://t.co/AQmTZhpZxD
— Oklahoma Attorney General John O'Connor (@Okla_OAG) October 19, 2021
I need to spend some more time with this, and also see the briefs that are filed. As of now, the court electronic docket does not show a motion for a temporary or preliminary injunction being filed. It’s going to be a bit muddy, because of mixing K-12 and higher ed. I could see a distinction being drawn by the court.
I expect to have follow up as the case proceeds, and to gain more information which will help me educate state legislators on how to draft lawsuit-resistent legislation.DONATE
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