Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
So the Tenth Circuit held Wednesday, in Black Emergency Response Team v. Drummond; a short excerpt from the opinion, by Judge Gregory Phillips, joined by Judge Harris Hartz:
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Circuit → hold → Hartz
Under subsection B of Oklahoma H.B. 1775, public-school employees may not "require or make part of a course" any of eight prohibited "concepts."
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employees → require → concepts
Each concept is a principle that, if taught, would advocate race or sex discrimination.
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that → teach → race
{Those eight concepts match eight "[d]ivisive concepts" from an earlier federal executive order, which forbade "promot[ing] race or sex stereotyping or scapegoating in the Federal workforce."}
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which → match → workforce
If a school employee violates subsection B, his or her license or certificate may be suspended or even revoked.
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license → violate → B
As we interpret it, subsection B prohibits school employees from teaching the prohibited concepts as correct principles or requiring teachers to do so.
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B → interpret → teachers
For example, a teacher can't teach that "one race or sex is inherently superior to another race or sex," and an administrator can't require a teacher to teach that "an individual's moral character is necessarily determined by his or her race or sex."
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character → teach → race
Though the plaintiffs fear that subsection B prohibits educators from discussing the eight concepts in the abstract or in connection with historical or popular figures, the statute's language does not support such a broad interpretation.
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language → fear → interpretation
Under subsection B's plain text, the plaintiffs aren't likely to show that subsection B is vague….
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B → show → text
Subsection B reads:
The provisions of this subsection shall not prohibit the teaching of concepts that align to the Oklahoma Academic Standards.
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that → read → Standards
[1.] No teacher, administrator or other employee of a school district, charter school or virtual charter school shall require or make part of a course the following concepts:
[a.] one race or sex is inherently superior to another race or sex,
[b.] an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously,
[c.] an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex,
[d.] members of one race or sex cannot and should not attempt to treat others without respect to race or sex,
[e.] an individual's moral character is necessarily determined by his or her race or sex,
[f.] an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex,
[g.] any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex, or
[h.] meritocracy or traits such as hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race.[2.]
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meritocracy → require → race.[2
The State Board of Education shall promulgate rules, subject to approval by the Legislature, to implement the provisions of this subsection.
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Board → promulgate → subsection
As the court elaborated,
Subsection B begins with a general statement protecting "the teaching of concepts that align to the Oklahoma Academic Standards."
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that → elaborate → Standards
The Academic Standards are "standards for instruction" adopted by the State Board of Education.
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Standards → adopt → Education
They "serve as expectations for what students should know and be able to do by the end of the school year."
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students → serve → year
They do not "dictate how teachers should teach," "mandate a specific curriculum," "limit advanced work beyond the standards," "prescribe all that can or should be taught," or "limit efforts to prepare students for college, career, and citizenship readiness."
Subsection B ends by authorizing the State Board of Education to implement appropriate rules.
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B → dictate → rules
Under that authority, the Board adopted a rule that school employees shall not "require or make part of any Course offered in a Public School" any of subsection B's eight "discriminatory principles."
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employees → adopt → principles
If an employee violates subsection B or its implementing rule, the State Board of Education "shall make a determination of whether to initiate proceedings to suspend [the school employee's] license or certificate."
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Board → violate → license
And if the violation is "willful," the Board "shall initiate proceedings to revoke [the employee's] license or certificate."
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Board → initiate → license
The court concluded that "make part of a course" wasn't vague, because it read the phrase fairly narrowly:
The K–12 plaintiffs aren't likely to show that the term "make part of a course" is vague, facially or as applied.
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term → conclude → course
Even if a law has multiple reasonable interpretations, for showing a likelihood of success on the merits, what matters is the law's most likely interpretation.
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matters → have → merits
And we think "make part of a course" most likely means teach as correct principles or require teachers to do so….
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make → think → teachers
The K–12 plaintiffs say it is unclear whether "mak[ing] part of a course" includes reading "texts … that directly mention" the prohibited topics or allowing student-initiated discussions "about these topics in response to readings and instruction on current events."
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that → say → events
We disagree that subsection B is unclear on those points.
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B → disagree → points
Sure, we could debate the contours of "make part of a course"—in other words, what it means to "teach."
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it → debate → what
Whether we read "make part of a course" broadly or narrowly, a teacher would not violate subsection B unless the teacher taught race or sex discrimination as specified in the concepts.
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teacher → read → concepts
And a teacher won't do that by accident.
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teacher → do → accident
To see why, consider the eight concepts' plain language, paying close attention to the verbs and their auxiliaries:
[a.] one race or sex is inherently superior to another race or sex,
[b.] an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously,
[c.] an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex,
[d.] members of one race or sex cannot and should not attempt to treat others without respect to race or sex,
[e.] an individual's moral character is necessarily determined by his or her race or sex,
[f.] an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex,
[g.] any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex, or
[h.] meritocracy or traits such as hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race….
That means to violate subsection B, a teacher must present the concepts as fact, just as the statute does.
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statute → see → fact
So a teacher would not violate subsection B by instructing about a historical or popular figure's beliefs, nor by encouraging discussion about current events and ideas.
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teacher → violate → events
But a teacher would violate subsection B by instructing students that any of the eight racist or sexist concepts is correct.
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any → violate → concepts
The statute's plain text eliminates any concerns about chilling instruction on historical events, social theories, or public policy.
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text → eliminate → events
For example, the dissent worries that in instructing about the Tulsa Race Massacre, "the teacher has likely taught, and endorsed as correct, the view that the Massacre was indeed horrific, and students may honestly believe that the message conveyed is that they 'bear responsibility,' and should feel 'discomfort, guilt, or anguish.'"
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they → worry → discomfort
But under the statute's plain text, the teacher is free to instruct about the massacre.
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teacher → instruct → massacre
The teacher is prohibited only from interjecting "thus, white people are inherently superior to black people," or "thus, black people are inherently superior to white people," or "thus, those of you who are white should feel discomfort, guilt, or anguish," and so on.
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who → prohibit → discomfort
In short, subsection B prohibits teachers from proselytizing students to accept certain racist or sexist creeds as truth.
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B → prohibit → truth
Apart from any prohibited racist or sexist editorializing, teachers remain free to instruct about historical or popular issues, and students remain free to draw their own conclusions.
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students → prohibit → conclusions
And the court concluded the prohibited concepts weren't themselves unconstitutionally vague:
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concepts → conclude → ?
We now turn to the eight concepts that subsection B prohibits from being taught in the classroom as correct principles.
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B → turn → principles
The K–12 plaintiffs aren't likely to show that these concepts are vague….
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concepts → show → ?
[A]gain, when read in context, concepts (c) and (d) prohibit only teaching as correct principles that someone "should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex" or
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someone → read → race
…and 32 more, not listed.
The Aporia
