[00:00:00] Speaker 03:
We have six cases on our docket this morning.

[00:00:10] Speaker 03:
One will be taken on the briefs.

[00:00:13] Speaker 03:
We'll start with 24-6139-1441, Black Emergency Response Team versus Drummond.

[00:00:30] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:32] Speaker 00:
My name is Emerson Sykes, and I'm here on behalf of plaintiffs who are teachers and students in Oklahoma public schools.

[00:00:40] Speaker 00:
I'd like to reserve a couple of minutes for rebuttal, if I may.

[00:00:42] Speaker 00:
I'd like to start with a brief opening and then move to our vagueness claims and then our First Amendment claims, but of course I'm here to answer your questions.

[00:00:52] Speaker 00:
We're here on cross appeal because the district court found that some but not all of HB 1775, the act in question, is unconstitutionally vague.

[00:01:03] Speaker 00:
And we are here to ask you to finish the job.

[00:01:06] Speaker 00:
This court should hold that we are likely to succeed on the merits of our arguments that the law is unconstitutionally vague in its entirety and to both recognize and vindicate students' First Amendment rights.

[00:01:20] Speaker 00:
But the central question before this court is, what does it mean to make part of a course eight prohibited concepts?

[00:01:29] Speaker 00:
And the answer is it's impossible to know.

[00:01:32] Speaker 00:
Our clients and teachers across the state have no notice as to what kind of conduct, what kind of teaching will lead them to be held in violation of the law and what kind of teaching is accepted.

[00:01:45] Speaker 04:
Can you give us an example with any of the eight where the teacher would want to do something and was uncertain whether or not it was within this realm?

[00:01:57] Speaker 00:
Sure, Your Honor.

[00:01:58] Speaker 00:
For all of the eight, the question is, what does it mean to make any of those concepts a part of a course?

[00:02:03] Speaker 00:
And so teachers don't know whether if they assign a book that might include the idea, whether that means you have made that idea a part of a course.

[00:02:12] Speaker 04:
Be more specific, though.

[00:02:14] Speaker 04:
We're talking about exact language, and there's exact language.

[00:02:18] Speaker 04:
The first one, one race or sex is inherently superior to another race or sex.

[00:02:24] Speaker 04:
This says you're not allowed to have that part of a course.

[00:02:30] Speaker 04:
And so what would be an instance where a teacher used materials that were part of the course that were for one race or sex is inherently superior to another race or sex?

[00:02:42] Speaker 00:
Your honor, that was a widely held belief for a long time.

[00:02:45] Speaker 04:
OK, I understand that.

[00:02:47] Speaker 04:
I agree with that.

[00:02:48] Speaker 04:
But still, the question is more precise, which is, can you give me one example where that would happen?

[00:02:54] Speaker 04:
And a teacher would be like, I don't know if I can do that or not.

[00:02:57] Speaker 00:
If a student asks, why was there slavery?

[00:03:02] Speaker 00:
A teacher might reply, because some people believe that one race was inherently superior to another.

[00:03:07] Speaker 00:
OK, but that's not the same thing as teaching.

[00:03:11] Speaker 00:
I'm not sure, Your Honor.

[00:03:12] Speaker 00:
I think if you say it as a part of an answer to a student who's asking a question about what happened, I submit that is very clearly made a part of a course.

[00:03:23] Speaker 00:
I think any sort of narrow interpretation requires rewriting the law.

[00:03:27] Speaker 00:
That is what the district court did.

[00:03:29] Speaker 04:
What about this interpretation?

[00:03:30] Speaker 04:
The interpretation that the word is is really important here.

[00:03:35] Speaker 04:
that one race or sex is inherently superior to another race or sex.

[00:03:39] Speaker 04:
Now I can see where if a teacher came in and said, today's lesson, children, is that whatever race is superior to whatever else race.

[00:03:48] Speaker 04:
That fits.

[00:03:49] Speaker 04:
But if a teacher comes in and says, Hitler thought that one race was superior to other races, I don't see how that fits.

[00:03:58] Speaker 04:
Because the lesson isn't that that is in fact so.

[00:04:02] Speaker 00:
Your honor, your narrow reading is not how the state is enforcing the law.

[00:04:07] Speaker 00:
The state is not only holding folks liable if they explicitly say the words that are in the statute.

[00:04:14] Speaker 00:
In fact, they held that the Tulsa School District was liable because the spirit of the training violated the law and admitted that there were no express statements that included any of the eight prohibited concepts.

[00:04:31] Speaker 03:
Why don't you describe that training?

[00:04:34] Speaker 03:
Let us know what the training was that they said was prohibited.

[00:04:37] Speaker 03:
It sounded problematic to me.

[00:04:40] Speaker 03:
Why don't you describe it?

[00:04:42] Speaker 00:
Well, the training included a variety of exercises that, you know, the merits of the individual training are not necessarily the reason that I brought it up.

[00:04:52] Speaker 03:
No, no, but you said this could be interpreted, and they're interpreting it very wildly.

[00:04:56] Speaker 03:
And there's only been three cases that are mentioned.

[00:05:00] Speaker 03:
One was a teacher who announced that she was

[00:05:03] Speaker 03:
a walking violation of the statute.

[00:05:07] Speaker 03:
The other two were school systems that then revised things.

[00:05:10] Speaker 03:
But the things that were done that brought attention to those two school districts are not the type of things you're describing.

[00:05:19] Speaker 03:
Why don't you describe it?

[00:05:20] Speaker 03:
Let's get that on the appellate record.

[00:05:22] Speaker 00:
Yes, Your Honor.

[00:05:24] Speaker 00:
The school district in Tulsa engaged in a variety of exercises that encouraged folks to decide, look at the racial impact of their presence.

[00:05:35] Speaker 00:
Was that the privilege walk?

[00:05:38] Speaker 00:
That was in Mustang County.

[00:05:40] Speaker 00:
But I would point out that the training, the teacher training, was not a part of a course.

[00:05:45] Speaker 00:
So going back to Judge Moritz question about, well, making part of a course seems quite narrow.

[00:05:49] Speaker 00:
They enforced it against the school district for a teacher training, which was not, in fact, making anything a part of a course.

[00:05:56] Speaker 00:
So we're not here to defend the merits of we don't represent Mustang, we don't represent Tulsa, and we don't represent Ms.

[00:06:03] Speaker 00:
Boimier.

[00:06:03] Speaker 00:
But we do represent teachers who are going to be subject to the same sort of analysis by the State Department of Education.

[00:06:11] Speaker 03:
There are lots of procedures involved in this.

[00:06:13] Speaker 03:
There's a warning to the school district.

[00:06:16] Speaker 03:
They're put on suspension eventually, perhaps, and then after no school district has been

[00:06:24] Speaker 03:
relieved of its responsibilities under this statute.

[00:06:27] Speaker 03:
No teacher has lost the license.

[00:06:30] Speaker 03:
The teacher cannot, at least as far as the record we have shows, maybe you have other information.

[00:06:35] Speaker 03:
To be suspended, it must be a willful violation.

[00:06:42] Speaker 03:
There are all sorts of ways to work through this without having someone say, this is too vague, so we're just going

[00:06:51] Speaker 00:
A point of clarification, Your Honor.

[00:06:53] Speaker 00:
Pardon?

[00:06:53] Speaker 00:
Yes.

[00:06:54] Speaker 00:
The teacher did have her license revoked.

[00:06:57] Speaker 03:
Yeah, the one who said, I'm a walking violation.

[00:06:59] Speaker 03:
That's pretty good evidence.

[00:07:01] Speaker 03:
It was intentional.

[00:07:03] Speaker 00:
The willfulness applies only to the revocation, not to the suspension.

[00:07:07] Speaker 00:
So just to clarify that point.

[00:07:11] Speaker 00:
So there is no Sienta requirement in the statute.

[00:07:14] Speaker 00:
And there is no Sienta requirement to have your license suspended.

[00:07:19] Speaker 00:
So our clients do not know.

[00:07:21] Speaker 00:
whether a parent or a student or anybody else who might report them, might hear that they have made part of a course by responding to a student's inquiry.

[00:07:33] Speaker 00:
And they're not sure, based on the evidence of how the state is interpreting and enforcing this law, how far they can go.

[00:07:40] Speaker 03:
What Judge Phillips was pursuing

[00:07:45] Speaker 03:
which I endorsed that pursuit, was give us an example of a problematic situation.

[00:07:52] Speaker 03:
It hasn't happened.

[00:07:53] Speaker 03:
It's been in effect for six years now, four years, this statute.

[00:07:59] Speaker 03:
And you're speaking very abstractly that these words could be misinterpreted.

[00:08:04] Speaker 03:
I think that could be said of almost any statute.

[00:08:06] Speaker 03:
It could certainly be said of the equal protection clause of the 14th Amendment.

[00:08:13] Speaker 03:
Convince us that this is really a problem.

[00:08:17] Speaker 00:
Your honor, there can be no doubt that the law is in effect and that the state is actively enforcing the law.

[00:08:23] Speaker 00:
So then the question is, when you look in the four corners of the law, is it clear what it means?

[00:08:28] Speaker 00:
And we submit it is not, because our clients

[00:08:32] Speaker 00:
want to teach about race and sex in the world around them.

[00:08:37] Speaker 00:
They want to teach literature that includes themes about race and sex.

[00:08:41] Speaker 00:
They want to teach about the historical existence of these ideas, but also current.

[00:08:47] Speaker 01:
Of course, all that is part of the exception or the safe harbor rule.

[00:08:52] Speaker 01:
How does that safe harbor rule fit into your argument?

[00:09:00] Speaker 01:
Does it make the vagueness worse?

[00:09:01] Speaker 01:
I'm assuming that's your argument,

[00:09:02] Speaker 01:
But teachers do know, and that is statutory, that they can teach about these certain concepts.

[00:09:08] Speaker 01:
And yet over here, you have this language saying you can't teach about these certain concepts.

[00:09:14] Speaker 01:
But should they feel comfortable?

[00:09:17] Speaker 01:
Shouldn't they feel comfortable knowing that no one has been prosecuted for the safe harbor concepts, as far as we know?

[00:09:26] Speaker 00:
Your honor, we think the safe harbor is a bit of a misnomer.

[00:09:28] Speaker 00:
The fact that we haven't seen more prosecutions, I think, proves Justice Alito right when he said, when there are vague laws, people have no choice but to steer far clear of that conduct.

[00:09:39] Speaker 00:
So teachers, the fact that we haven't seen more prosecutions, I think, is because of the chilling effect that we have seen.

[00:09:45] Speaker 00:
Teachers are avoiding these topics on a day-to-day basis.

[00:09:47] Speaker 00:
And the fact that the Oklahoma economic standards

[00:09:50] Speaker 00:
in broad terms set benchmarks for each grade level.

[00:09:54] Speaker 00:
They don't include lessons.

[00:09:55] Speaker 00:
They don't include ideas.

[00:09:57] Speaker 00:
They don't include books or anything.

[00:09:59] Speaker 00:
It's just a broad outline for the kinds of learning targets that need to be achieved.

[00:10:03] Speaker 04:
It's not just that.

[00:10:04] Speaker 04:
I'm looking at the Oklahoma academic standards, social studies, and it is

[00:10:09] Speaker 04:
complete with things like forced Indian removal, Tulsa race riots, post-war economic developments, immigration reform, criminal justice reform, American imperialism.

[00:10:21] Speaker 04:
In other words, I don't think, and all of those conditions are subject to this.

[00:10:28] Speaker 00:
But Your Honor, if it's true that these Oklahoma standards are sort of

[00:10:35] Speaker 00:
counterbalance everything in the law.

[00:10:37] Speaker 00:
It's not clear what's left of the law, because how can one discuss these things?

[00:10:42] Speaker 00:
You mentioned this very brief list of topics, but how can one give appropriate detail to what these concepts actually mean without running afoul of the concepts within HB 77?

[00:10:53] Speaker 04:
My answer is to read the statute

[00:10:56] Speaker 04:
plainly, the plain language of the statute.

[00:10:59] Speaker 04:
And you know, who I think would have a problem with the plain language of this statute is the Aryan nation or someone who wants to come in and teach that, that whites are superior or something, would be in violation of this statute.

[00:11:12] Speaker 04:
But a social study teacher who is talking about the Aryan nation or some other group that takes these views, I think that's completely fair game in the school, and I think the standards back that up.

[00:11:26] Speaker 04:
Not sure that I see the same problem that you do as far as vagueness, and I don't know how you'd ever fix it, if that's a problem.

[00:11:33] Speaker 00:
Your Honor, if you're inclined to read the statute so narrowly, of course, none of our clients are actively trying to

[00:11:39] Speaker 00:
promulgate the ideas of the Aryan nation, or should they?

[00:11:44] Speaker 00:
We don't think that that is, that the language of the statute is readily susceptible to such a narrow reading, but if your honor does decide, and that is not the reading that the state of Oklahoma has read, but if your honor is inclined to take that reading, that would provide comfort to our clients that they don't have now.

[00:12:01] Speaker 04:
What's your definition of a narrow reading?

[00:12:02] Speaker 04:
All I'm doing is reading what the language says.

[00:12:06] Speaker 00:
Your Honor, I think it's a narrow reading of make part of a course to say that it's active promotion and endorsement.

[00:12:12] Speaker 00:
A lot of things are a part of a course that a teacher doesn't necessarily personally believe.

[00:12:17] Speaker 00:
So if we're saying that make part of a course means to stridently, affirmatively promulgate these ideas, that's how the district court, we say in an abuse of discretion, rewrote the statute.

[00:12:30] Speaker 00:
I'll note that the Supreme Court of Oklahoma was invited to interpret the statute and declined to do so.

[00:12:36] Speaker 00:
For various reasons.

[00:12:37] Speaker 00:
For various reasons, yes.

[00:12:39] Speaker 00:
including the fact that there is not a dispute about sort of two ways of reading the law, but about whether the law is vague at all, and we think that that question is for you.

[00:12:47] Speaker 03:
Also because it was not happy that the district court had decided the issue and then was certifying to the Supreme Court.

[00:12:56] Speaker 03:
It was an unusual posture.

[00:12:58] Speaker 03:
It was a strange situation and I wouldn't read too much into the Oklahoma Supreme Court decision.

[00:13:04] Speaker 03:
But may I ask you, because it's concerning if this is chilling teachers from doing things.

[00:13:12] Speaker 03:
What relief can teachers get now?

[00:13:15] Speaker 03:
Couldn't, instead of bringing this suit, could you have brought a declaratory judgment that

[00:13:20] Speaker 03:
Your clients want to teach this, want to have this sort of discussion, and we'd like to make clear that that's not a violation of the statute so they can pursue it.

[00:13:30] Speaker 03:
Could they have done that?

[00:13:31] Speaker 03:
Or is there some administrative way of clarifying what the statute means?

[00:13:35] Speaker 00:
There may have been, Your Honor.

[00:13:36] Speaker 00:
I think our case was properly filed and were properly before you.

[00:13:40] Speaker 00:
I think there is vagueness throughout the law.

[00:13:42] Speaker 00:
It is not just one question that they need clarified.

[00:13:45] Speaker 00:
I've focused on make part of a course, but the lists themselves are also deeply problematic.

[00:13:50] Speaker 00:
The triple negative and D, the district court agreed that there were several parts that were already unconstitutional.

[00:13:55] Speaker 00:
But in terms of, sorry,

[00:13:58] Speaker 00:
In terms of recourse, what we're asking is for this court to remove this barrier and remove the chilling effect from teachers.

[00:14:05] Speaker 00:
And the best way to do that is to enjoin the law in its entirety.

[00:14:07] Speaker 03:
As the Supreme Court said, we should avoid finding constitutional vagueness when the state hasn't really developed a law.

[00:14:14] Speaker 03:
If it's susceptible to a reasonable interpretation,

[00:14:19] Speaker 03:
We should not strike it down.

[00:14:21] Speaker 03:
Maybe after the state issues some decisions, maybe if teachers fired, then we can get involved.

[00:14:27] Speaker 03:
But isn't the whole problem here that we haven't had a chance for this to be digested?

[00:14:37] Speaker 03:
by the school districts and so on, so they have clear rules.

[00:14:41] Speaker 03:
And we would be acting a little prematurely by striking down the statute at this point.

[00:14:48] Speaker 00:
With respect, Your Honor, I don't think it's premature.

[00:14:50] Speaker 00:
This statute has been in effect since 2021.

[00:14:54] Speaker 00:
It has been enforced actively by the state since 2022.

[00:14:58] Speaker 03:
More than the three occasions?

[00:14:59] Speaker 00:
Well, we don't know.

[00:15:00] Speaker 00:
We haven't had discovery, so we don't know about all the other investigations that may happen.

[00:15:04] Speaker 00:
I see I'm almost out of time.

[00:15:07] Speaker 00:
This is important.

[00:15:07] Speaker 00:
Yes, of course.

[00:15:08] Speaker 03:
We'll give you some time.

[00:15:09] Speaker 00:
OK, great.

[00:15:11] Speaker 00:
But in terms of the enforcement actions, I think you have to look at what they've actually done and the findings that they've actually made.

[00:15:17] Speaker 00:
And so whatever course we could have taken or might have taken, we have to look at what we have on the record, which is a handful of enforcement actions in which the state read the statute not narrowly, not only finding violations for Aryan beliefs, but saying that if you were anywhere near, if the spirit abutted what they don't like without any express statements of the prohibited concepts, you can still be held to be in violation of the law.

[00:15:44] Speaker 00:
So we ask that you enjoin it in its entirety.

[00:15:46] Speaker 00:
Thank you.

[00:15:47] Speaker 03:
Thank you.

[00:16:17] Speaker 03:
Mr. Flanagan.

[00:16:19] Speaker 02:
Thank you, Your Honor, and may it please the court.

[00:16:21] Speaker 02:
My name is Will Flanagan, and I represent state defendants in this case.

[00:16:25] Speaker 02:
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.

[00:16:35] Speaker 02:
The statute does not prohibit teaching about racism.

[00:16:39] Speaker 02:
It does not restrict the use of minority authors.

[00:16:42] Speaker 02:
And it does not even restrict teachers from presenting competing viewpoints on contemporary issues.

[00:16:48] Speaker 04:
Well, what does it do?

[00:16:49] Speaker 04:
If you read it narrowly or exactly or whatever I do, I wouldn't see

[00:16:55] Speaker 04:
I doubt that any teacher's ever done those things, coming in and saying one race is greater than another.

[00:17:02] Speaker 04:
So why do we even have this?

[00:17:03] Speaker 04:
It looks like it just creates a bunch of problems.

[00:17:06] Speaker 02:
Well, hopefully no teacher is going in and teaching that one race is unambiguously better than another.

[00:17:12] Speaker 02:
But what the act prohibits is teaching these concepts as true or endorsing them.

[00:17:18] Speaker 02:
For example,

[00:17:20] Speaker 02:
the provision that an individual should be discriminated against or receive adverse treatment solely or partially because of his or her race or sex.

[00:17:29] Speaker 02:
And that's teaching or that's requiring or forbidding teachers from teaching that students should think that students or that other people should be adversely treated because of their race or sex.

[00:17:41] Speaker 04:
Has that ever happened?

[00:17:42] Speaker 04:
Has it been a problem?

[00:17:45] Speaker 02:
Your Honor, in the record,

[00:17:47] Speaker 02:
In the appendix, there's a declaration from the state superintendent or former state superintendent, Janet Barisi, where she notes that she's received numerous complaints from parents and students about racialized or super race conscious teachings in schools.

[00:18:06] Speaker 04:
And that's the problem.

[00:18:07] Speaker 04:
That's my concern here.

[00:18:09] Speaker 04:
is that the overlay, the gloss on this seems to be white guilt, white privilege, and anyone who's interpreting this law is going to interpret it in that light.

[00:18:20] Speaker 04:
And so everybody's going to steer and lean just a little bit away from that.

[00:18:24] Speaker 04:
And no matter what the standards say, it's going to affect the teaching.

[00:18:31] Speaker 02:
The text of the statute, you only violate the statute if you're teaching a specific concept as true or endorsing that concept.

[00:18:40] Speaker 02:
And there has been discussion about the academic standards.

[00:18:45] Speaker 02:
And before the legislature laid out what the specific prohibited concepts were, it made clear that nothing that followed was to basically

[00:18:55] Speaker 02:
prohibit any teaching that's consistent with those standards.

[00:18:59] Speaker 02:
And we know from the standards that teachers are required to teach about many historical actions that involve racism, such as the Jim Crow

[00:19:11] Speaker 02:
movement, the KKK, the Nazi party.

[00:19:14] Speaker 02:
And you can't teach about those concepts without mentioning racism or mentioning or teaching that.

[00:19:21] Speaker 01:
Say a student in response to that teaching asks a question.

[00:19:27] Speaker 01:
This is, let's say, a junior high student in a history class asks a question of implicit bias.

[00:19:34] Speaker 01:
Ask the teacher about their thoughts on implicit bias and how that plays into all of this.

[00:19:40] Speaker 01:
How is a teacher to respond when they're told you cannot make part of a course?

[00:19:47] Speaker 01:
that an individual by virtue of his race or sex is inherently racist, sexist, or oppressive, whether consciously or subconsciously.

[00:19:56] Speaker 01:
You're told you can't teach about implicit bias, period.

[00:19:59] Speaker 01:
We're not calling it that, but this is what we're saying.

[00:20:02] Speaker 01:
Now, the teacher gets a question, and it's a question that's relevant and valid.

[00:20:06] Speaker 01:
This is not a novel concept.

[00:20:08] Speaker 01:
It's one that's been substantiated.

[00:20:10] Speaker 01:
How does the teacher respond to that question?

[00:20:13] Speaker 01:
Does the teacher say, I'm so sorry, section B of 1B doesn't permit me to answer that question?

[00:20:20] Speaker 01:
Because I would be making that part of the course in response to your question.

[00:20:25] Speaker 01:
How do they do that?

[00:20:27] Speaker 01:
And why wouldn't they be worried about that?

[00:20:29] Speaker 02:
Your Honor, that provision, the teacher would only be violating it by teaching a concept that was saying that that concept was true or something that students said.

[00:20:38] Speaker 01:
That is not what the statute says.

[00:20:41] Speaker 01:
Your long definition of what you think shall require or make part of a course means is nowhere in this statute.

[00:20:49] Speaker 01:
The district court basically used the word teach.

[00:20:52] Speaker 01:
Well, doesn't teaching involve responding and having a discussion with students, or does it just involve a teacher preparing curriculum

[00:20:59] Speaker 01:
and preparing course materials and just standing up there and giving it out to the students.

[00:21:05] Speaker 01:
Doesn't it involve interaction with the students?

[00:21:08] Speaker 01:
And isn't that the problem here?

[00:21:09] Speaker 01:
How does a teacher have a discussion?

[00:21:14] Speaker 01:
How does a teacher respond to a question with any lack of any definition here?

[00:21:21] Speaker 01:
And to me, it means essentially to teach.

[00:21:24] Speaker 01:
And teaching certainly involves interacting and responding to students' questions.

[00:21:29] Speaker 01:
and engaging them.

[00:21:32] Speaker 02:
Yes, Your Honor.

[00:21:32] Speaker 02:
Teaching does involve engaging students, and there will oftentimes be a back and forth between students and teachers.

[00:21:39] Speaker 01:
And what does that mean for that teacher that says, huh, I remember Section B says, I can't talk about implicit bias.

[00:21:46] Speaker 01:
Hmm.

[00:21:46] Speaker 01:
That seems to be a concept these students are really concerned about.

[00:21:50] Speaker 01:
Hmm.

[00:21:51] Speaker 01:
How would you propose they respond?

[00:21:54] Speaker 02:
The Act doesn't prohibit presenting students with research on issues and saying that some people believe this.

[00:22:02] Speaker 02:
There are scholars that have done research and have come to believe or to argue that there are implicit biases.

[00:22:10] Speaker 02:
What the statute would be.

[00:22:11] Speaker 01:
The Act doesn't prohibit teaching about that implicit bias is a true concept or a valid concept, one that students should understand.

[00:22:19] Speaker 02:
It would prohibit endorsement?

[00:22:21] Speaker 01:
It certainly seems to.

[00:22:22] Speaker 01:
Section B seems pretty clear about that.

[00:22:24] Speaker 01:
You don't make that part of the course.

[00:22:26] Speaker 02:
It would prohibit teaching it as true, but it doesn't prohibit presenting students with competing viewpoints on different issues.

[00:22:34] Speaker 01:
That's your statement, but I'm asking you where would I read that if I'm reading the statute, those simple words of the statute, making it part of a course.

[00:22:44] Speaker 01:
I think most teachers would think making part of a course is the engagement with the students and responding to questions and having a discussion and trying to explain concepts.

[00:22:54] Speaker 01:
As opposed to forcing it upon them, which is what you're suggesting is not okay.

[00:23:00] Speaker 02:
I'm not saying that the act only applies to a lecture type teaching.

[00:23:05] Speaker 02:
A teacher could, for example, if asked a question that is somewhat related to one of these concepts, and then in response goes on a five minute, not tangent, but a five minute mini lecture endorsing or teaching this concept is true, that could fall underneath the act.

[00:23:25] Speaker 01:
What I'm saying is that the- Right, and they're responding to a question, so should their answer be, hmm,

[00:23:32] Speaker 01:
I actually do think that this concept is true and valid, but I can't talk about that, so let me just tell the student I can't answer their question.

[00:23:40] Speaker 01:
I mean, how does that teacher respond and be able to sleep at night?

[00:23:45] Speaker 02:
The teacher can respond by referencing literature and research in that area.

[00:23:52] Speaker 02:
The teacher just can't say that this is true.

[00:23:54] Speaker 02:
It's something that the student should believe.

[00:23:56] Speaker 02:
And I am deriving that interpretation.

[00:23:59] Speaker 01:
That's asking a lot of teachers to make those kind of on-the-spot decisions during classroom discussions about, let's see, I've got some literature here I can refer them to, but I can't talk about whether it's true or not true.

[00:24:12] Speaker 01:
If so, I'm going to lose my license.

[00:24:14] Speaker 01:
That's all going to spin through their head, I take it.

[00:24:18] Speaker 02:
Yes, and it's only eight discrete provisions that are defined.

[00:24:25] Speaker 01:
Very broad ones.

[00:24:27] Speaker 01:
Very broad.

[00:24:29] Speaker 01:
Go ahead.

[00:24:32] Speaker 03:
The state could forbid any mention of implicit bias.

[00:24:38] Speaker 03:
That would not be a vagueness issue.

[00:24:41] Speaker 03:
That might be a First Amendment issue.

[00:24:42] Speaker 03:
That might be other questions about it.

[00:24:46] Speaker 03:
What I'm hearing is maybe there really wasn't much evidence of problems in the schools before the statute was passed and the teachers don't want to teach those things anyway so maybe the statute was unnecessary.

[00:25:05] Speaker 03:
The question though is whether because of vagueness in the language it chills

[00:25:13] Speaker 03:
teachers from doing things and they're being, well, they're afraid to teach certain things and they face the possibility of losing their livelihood by doing that.

[00:25:27] Speaker 03:
So the question is really, how's it acting and what protections are there for teachers?

[00:25:34] Speaker 03:
If a teacher is concerned about, gee, how much can I say about implicit bias in my class?

[00:25:40] Speaker 03:
Is there a way to find out that without risking your license?

[00:25:46] Speaker 02:
I think, Your Honor, you mentioned the possibility of bringing a declaratory action.

[00:25:50] Speaker 02:
Is there anything administratively?

[00:25:55] Speaker 02:
There is room in discussions that school districts can have with the State Department of Education in figuring out how exactly they should instruct their teachers and how to approach it.

[00:26:09] Speaker 02:
And there's information in the record from school districts providing guidance to their teachers.

[00:26:15] Speaker 03:
I believe that... School districts are issuing guidance beyond the regulations in the statute?

[00:26:21] Speaker 02:
Not beyond the regulations, Your Honor, but... In addition to?

[00:26:25] Speaker 02:
to essentially give sort of guideposts and assure their teachers that they're not going to be violating the provision by merely teaching about, for example, the Tulsa Race Massacre.

[00:26:37] Speaker 02:
I think in the supplemental appendix there's an example from admin public schools in which they reiterate to their teachers that you're not going to violate the statute by teaching about

[00:26:50] Speaker 02:
racist events that have occurred in the past, you're only going to violate the statute by affirmatively teaching as true one of these specific concepts or endorsing them.

[00:27:01] Speaker 03:
That has been said by school districts.

[00:27:04] Speaker 03:
That's not something that the district court constructed.

[00:27:09] Speaker 02:
That is something, I believe, I don't know exactly the page number, but it's in the range of page 70 to 80 of our supplemental appendix.

[00:27:17] Speaker 02:
I'm attached to admin public schools affidavit in which they're disputing plaintiffs characterization of their change in their high school literature classes.

[00:27:29] Speaker 02:
And I would note that this is a facial vagueness challenge and the Supreme Court has consistently reiterated that facial challenges are especially difficult to win and that's because they

[00:27:43] Speaker 02:
They threaten to short circuit the ordinary political and judicial processes.

[00:27:48] Speaker 02:
And this court in Fabrizius just last year emphasized that a statute will not be held facially vague if it has a plainly legitimate sweep.

[00:28:01] Speaker 02:
And this statute... What does that mean?

[00:28:05] Speaker 02:
I interpret that to mean a good chunk of clearly prescribed conduct that is clear.

[00:28:13] Speaker 02:
And here I think it's possible for each of these provisions to list teachings that would clearly violate the statute and would not themselves be paid.

[00:28:26] Speaker 01:
Wouldn't every one of these sections, A through H, wouldn't every single one of them be a potential counter discussion

[00:28:38] Speaker 01:
to a teacher who's teaching the various, many, many subjects that are permissible under the Safe Harbor portion of the statute, wouldn't each of these eight sections be sort of an offset that a student could say, hey, but what about this concept?

[00:28:54] Speaker 01:
Tell me about this and how this concept, because these are concepts, relates to whatever subject you're teaching, whether it's a Tulsa massacre or anything else that's permissible and required in Oklahoma.

[00:29:07] Speaker 01:
What does a teacher do then?

[00:29:09] Speaker 01:
Do they have to flip through in their mind the eight different very broad provisions and say, hmm, that's one of those concepts.

[00:29:17] Speaker 01:
And what can I say about that?

[00:29:20] Speaker 01:
Because I know I can teach it, but I don't know if I can respond to questions about it.

[00:29:26] Speaker 01:
I mean, to me, what makes it vague is the interaction part of this.

[00:29:32] Speaker 01:
I think a teacher can control what they plan to teach, what they plan to teach that day, what their

[00:29:38] Speaker 01:
schedule is, what their coursework they're planning to lay out.

[00:29:42] Speaker 01:
But beyond that, isn't it a little hard for them to anticipate and to understand what they can teach in response to student questions or student discussion amongst themselves?

[00:29:58] Speaker 01:
And if one student goes home and talks to their parents about that, do they worry?

[00:30:03] Speaker 01:
Am I going to have a job?

[00:30:05] Speaker 01:
You know, that's what I worry about.

[00:30:07] Speaker 01:
And I just don't see where the statute gives it this narrow, narrow definition that you want to say, make part of course.

[00:30:18] Speaker 01:
The teacher is making it a part of a course if it responds with a discussion of one of these concepts.

[00:30:26] Speaker 02:
I think make part of a course, it's next to require, require or make part of a course.

[00:30:32] Speaker 02:
And require is defined as to call for a suitable or appropriate or to demand as necessary or essential.

[00:30:39] Speaker 02:
And so I think reading those two terms together, it's a readily susceptible, narrowing construction.

[00:30:46] Speaker 01:
What does require a concept mean, by the way?

[00:30:50] Speaker 01:
That by itself doesn't make any sense.

[00:30:52] Speaker 01:
How does a teacher require a concept?

[00:30:54] Speaker 01:
To me, that's just a throwaway word.

[00:30:56] Speaker 01:
It doesn't make any sense in this discussion.

[00:31:01] Speaker 02:
What does it mean to require a concept?

[00:31:05] Speaker 02:
I think to call for it as suitable or appropriate for the students to believe that concept or to endorse it within the classroom.

[00:31:15] Speaker 02:
And I see that I am running out of time.

[00:31:18] Speaker 02:
And so I just close by asking that this court

[00:31:21] Speaker 02:
affirm the parts of the district court's opinion, denying the injunction, and reverse the limited injunction.

[00:31:26] Speaker 03:
Thank you.

[00:31:30] Speaker 03:
You're out of time, but I'll give you a minute if you have something.

[00:31:37] Speaker 00:
I appreciate the court's indulgence.

[00:31:39] Speaker 00:
Just one quick point, picking up on where you left off, Judge Hartz, with the facial challenge and what's the appropriate standard.

[00:31:47] Speaker 00:
Defendants put forward Fabrisius and curiously note that the line of cases that they cite for their standard don't mention Supreme Court cases like Johnson.

[00:31:58] Speaker 00:
And that is not because the 10th Circuit or the Supreme Court meant to overrule Johnson.

[00:32:03] Speaker 00:
But it's because they meant to leave Johnson undisturbed.

[00:32:06] Speaker 00:
That's what establishes the standard for a facial vagueness challenge.

[00:32:12] Speaker 00:
And Justice Alito said that just because you can think of some concept that might fall within these vague provisions doesn't

[00:32:20] Speaker 00:
end the vagueness inquiry.

[00:32:22] Speaker 00:
And in fact, you can still find a statute to be unconstitutionally vague.

[00:32:26] Speaker 00:
And Justice Gorsuch, not just is it possible to succeed in a facial vagueness challenge, but here we argue we should be afforded a heightened standard.

[00:32:35] Speaker 00:
And even the district court agreed, as Justice Gorsuch said in Demaya, where people's livelihoods and licensures are on the line, we need to-

[00:32:45] Speaker 00:
He's all by himself, but you're welcome to join him.

[00:32:47] Speaker 03:
We think he is right.

[00:32:56] Speaker 03:
Thank you.