10th Circuit Hears Arguments in Major Educational Censorship Case

DENVER – The Tenth Circuit Court of Appeals heard arguments today in BERT v. Drummond, a major educational censorship case stemming from a 2021 law that has chilled classrooms across Oklahoma.

Students and teachers argued that HB 1775, which prohibits instructors from “mak[ing] part of a course” eight prohibited concepts related to race and sex, is unconstitutionally vague and has caused a chilling effect for teachers. Similar laws and policies have popped up throughout the country at the state and local level, many of which have been found by district courts to be unconstitutional. BERT v. Drummond was the first federal case challenging such a law.

“The law’s impossibly vague language, including a sentence with a triple negative, puts teachers in an impossible bind,” said Emerson Sykes, senior staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project. “They can teach children about hard things in the world around them and risk losing their teaching licenses, or they can or self-censor and deprive students of important educational opportunities. This Court has the power to block the law and stop the chill.”

In 2024, the federal court blocked the enforcement of two of the eight prohibited concepts that restrict K-12 instruction because they are vague, fail to let educators know what course material is prohibited, and could prevent discussions of a wide variety of ideas, including those that are the subject to current political debates. These provisions remain enjoined. The Oklahoma Supreme Court also clarified that the law does not apply to academic speech in higher education.

“Today marks another step in the fight for Oklahoma K-12 teachers and students, who continue to face vague and confusing limits on their ability to speak and learn in the classroom,” said Megan Lambert, legal director for the ACLU of Oklahoma. “It is beyond time our students get back to having open and equitable dialogue about our country’s history — one that includes the experiences and viewpoints of people of color and other marginalized communities, without partisan and discriminatory restrictions. Our history as a state and country cannot be erased, and the ability to discuss and debate ideas, even those that some may find uncomfortable, is a crucial part of our democracy.”

“We are asking the Tenth Circuit to finish the job,” said Maya Brodziak, senior counsel with Lawyers’ Committee for Civil Rights Under Law. “Students and teachers have suffered under the vagueness of this law for years, and countless Oklahoma children have been deprived of valuable opportunities to learn about themselves and the nation’s history. The First Amendment protects the freedom to learn.”

Attorneys for the students and teachers further argue that HB 1775 violates students’ First Amendment rights to receive information and that the court should reject the government’s radical argument that class instruction is “government speech.”

The suit was originally filed in 2021 by the ACLU, the ACLU of Oklahoma, Lawyers Committee, and McDermott, Will & Schulte LLP filed suit against HB 1775 on behalf of a broad group of public school teachers and students. For more information about the case, see here.