ACLU waits for judge to hear challenge to House Bill 1775 -- Oklahoma's new law about race and gender in schools

Aug. 2—The American Civil Liberties Union is waiting for a federal judge to move on Black Emergency Response Team v. O'Connor, a lawsuit that would determine the future of a controversial law that bans certain teaching on race and gender in Oklahoma public schools.

On Oct. 19, 2021, the ACLU joined the ACLU of Oklahoma, Lawyers Committee for Civil Rights under Law, and pro bono counsel Schulte Roth & Zabel LLP to file a lawsuit that addresses House Bill 1775.

Signed into law in May 2021, HB 1775 restricts the ability of public school teachers and college professors from talking about race in the classroom in a way that might lead to feelings of guilt. The bill followed a movement among Republicans to address Critical Race Theory, an academic field that addresses systemic racism.

Since then, one ACLU senior staff attorney is wondering what is holding up Judge Charles Goodwin from advancing the case.

Emerson Sykes said the court has held one status conference in 2021, which was supposed to schedule a hearing to argue the preliminary injunction.

"The judge decided that no argument was necessary, and has not ruled on a single thing," Sykes said. "There are pending motions on both sides ... there has been no word from the court, no decision, no orders, no argument, no status conference, nothing."

He said federal judges don't have a deadline to rule in civil suits.

"When orders are pending for more than a year, they are put on a list, and we have been put on that list for almost a year," Sykes said.

According to the World Population Review, 18 states have passed measures that restrict how race is taught in public schools.

Sykes said recent developments in education have elevated the voices of people who have faced historical marginalization, and in response, certain lawmakers have resisted by enacting laws.

"For generations, we had a very whitewashed history that was taught in our schools, but over the last few decades, we've had success at creating a more inclusive curriculum that highlights narratives of all different kinds of people and provides a more accurate picture of our nation and our world, the good, the bad, and the ugly," Sykes said.

Ryan Walters, the state superintendent of public instruction, has been a supporter of the bill since his time as Oklahoma's secretary of education.

In a June meeting with Cleveland County Republicans, that included a crowd of protestors, Walters responded to a question of how historical events like the Tulsa Race Massacre are taught, with a definition of Critical Race Theory he described as educators wrongly teaching that some people are inherently racist.

"I would never tell a kid that because of the color of your skin, because of your race or your gender or anything like that, that you are less of a person or are inherently racist," Walters said. "That doesn't mean you don't judge the actions of individuals. You can absolutely. Historically, you should. 'This was right. This was wrong. They did this for this reason.' But to say it was inherent because of their skin, is where I say that is Critical Race Theory. You're saying that race defines a person. I reject that."

The bill's author, Kevin West, R-Oklahoma City, told KFOR last year the bill was designed to address specific concepts in schools when race is involved.

"It's the concept that any individual should feel discomfort, guilt, anguish, etc.," West said in his TV interview. "If the lesson plan is designed to incite a certain feeling that's what the bill addresses."

Rep. Jacob Rosecrants, D-Norman, a former middle school teacher, said Republicans are engaging in culture wars to ignite their base and assume control over the content taught.

"The bill writers were thinking the same thing the bill writers in other states where this type of bill became law were thinking: They aim to scare their base into believing indoctrination of our students is occurring in our public schools, which is a flat-out lie," Rosecrants said.

Rep. Mark McBride, R-Moore who voted to pass the bill, was reached for comment, but did not respond before press time.

Sykes said because an injunction was not put in place, the law is in full effect, which is felt by students and teachers.

"We've seen over the last two years that those fears have been borne out," he said. "There's been a chilling effect on teachers. There have been complaints filed and investigations."

Sykes said the ACLU took the case because it believes that it has the ability to overturn the law. The organization is arguing the law is not constitutional, in part, because the law was written vaguely.

"One of the critical problems and what is our lead claim in our lawsuit is that the law is unconstitutionally vague," Sykes said. "People who are subject to the law cannot be expected to reasonably understand what is prohibited and what is permitted according to the law's text."

He said the ACLU will also argue that teachers have a First Amendment right to teach curriculum on race, and students have the right to learn it.

"This is one of the worst laws we have on the books, mostly because it is entirely too broad, it isn't clear, and it carries a steep penalty for infractions," Rosecrants said.

He said Mustang Public Schools and Tulsa Public Schools have both been "saddled with dings" to their accreditation after having violated the law.

Sykes said the law is written so teachers can't teach anything that will cause any individual discomfort, guilt, anguish, or psychological distress. He said the bill was written from the perspective of white people.

"Lawmakers have shown whose discomfort they are worried about," he said. "It was obvious from the commentary from the legislative session that the people who passed this law voted in order to protect white children from feeling uncomfortable about learning about racism," he said. "As a young Black student in public schools, I can testify of the discomfort that happens when these stories are not told."

Michael Givel, president of the University of Oklahoma Association of University Professors, another plaintiff in the case, said he isn't surprised Goodwin hasn't moved on the civil suit, which he said has no standard for a speedy trial.

"Judge Charles Barnes Goodwin was appointed twice by President Trump," he said. "He received a 'not qualified' rating from the American Bar Association. They explained why this was all going on, and they said he's capable with his knowledge of the law but they questioned his work habits. This lawsuit was filed in October 2021 and this judge has not made one ruling on this lawsuit to this day."

"I understand what the [American Bar Association] said about his work habits and not administering justice efficiently, but this goes beyond that. Whatever the motivation might be, in essence, he has put this lawsuit on hold. That's the story at the moment."

Marcus Trevino in Stillwater contributed to this report.

Brian King covers education and politics for The Transcript. Reach him at bking@normantranscript.com.