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What does HB 1775 mean for educators' free speech? Lawyers offer perspectives


Robert L. Kerr
Mon, October 17, 2022 


The approach to Free Speech Week (Oct. 17-23) this year has felt like Oklahoma teachers are living through a textbook example of what First Amendment law calls a “chilling effect.”

That has been one of the Supreme Court’s cornerstones of vigilance against overly broad government restrictions on expression for some 70 years — “because First Amendment freedoms need breathing space to survive,” as the court has emphasized, and Chief Justice John Roberts invoked in a major ruling just last year.

Since Oklahoma’s 2021 enactment of House Bill 1775, recent news-media accounts, and one conversation after another among teachers, have dramatized its chilling effect in terms of fear and confusion as to what can be legally addressed in the classroom.

Should educators be so fearful? Based on purported violations of HB 1775 already leading to harsh penalties by the state against two larger school districts and to threatened revocation of a teacher’s state teaching certificate by a candidate for state schools superintendent, the answer would seem to be yes.

So in the spirit of Free Speech Week, I sought the perspectives of three of Oklahoma’s very best First Amendment lawyers on HB 1775.

Most basically, on its face, the new law can be read as doing two things. First, it bans state higher-education institutions from requiring students to take diversity training or imposing “any orientation or requirement that presents any form of race or sex stereotyping or a bias on the basis of race or sex.” Second, it forbids K-12 teachers from requiring or making part of a course any of eight banned “concepts” related to race and sex.

Although the law has not been tested in court, a plain reading of it suggests that it doesn’t, for example, make it illegal for any student to ever feel “discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex” from a lecture or assignment — as some media accounts have suggested and many teachers seem to believe, based on the language of one of the most-discussed concepts.

Rather, the text of the law bans requiring or making it part of a course that students should feel such things. However, trusting that all administrators and politicians will interpret that part of the law in exactly that way — and all other parts reasonably and consistently — understandably makes many educators nervous.

“Colleagues across campus have expressed concern to me about what they can teach now,” said Joe Thai, who teaches First Amendment and constitutional law at the OU College of Law, and has served as lead counsel in successful free speech litigation. “I tell them, I don’t think it prevents the teaching of topics related to race or gender, such as teaching that there has been structural racism, sex discrimination, or other relevant historical facts on the subject.”

“The provision people misread the most [concerning students feeling discomfort, etc., on account of their race or sex] doesn’t turn on the subjective feeling of students. It turns on teaching that people ought to feel those things. So I would argue that a teacher can even pose the question as to whether we should feel discomfort or anguish because of relevant historical realities.”

His confidence derives partly from his strong doubts that “HB 1775’s eight banned concepts in Section B (applicable to ‘a school district, a charter school or a virtual school’) could be reasonably or successfully argued to apply to Section A’s diversity-training prohibitions (applicable to ‘an institution of higher education’).”

“It would run counter to the text and structure of the law to apply the prohibitions in one section to the institutions in the other,” he said.

But college educators may still wonder whether opportunistic politicians might seek to apply the broad language from the ban on higher-education requiring diversity training to classes not primarily devoted to that subject. Given the law’s ban on “any form of mandatory gender or sexual diversity training or counseling,” could a politician seeking headlines — regardless any formal legal actions — demand penalties for, say, university-required history courses whose topics necessarily involve discussions of past race or sex stereotyping, bias, etc.

Thai doubts the courts would uphold reading the law’s ban on higher-education requiring diversity training in that way. Nevertheless, such concerns represent another example of how a law arguably as overly broad and vague as HB 1775 can potentially chill legitimate expression protected by the First Amendment.

Rick Tepker, recently retired as the first Floyd & Irma Calvert Chair of Law and Liberty at OU Law, where he taught First Amendment and constitutional law and argued successfully before the U.S. Supreme Court, similarly is no fan of HB 1775. He observes that “the drafters seem intent on being slippery, with strategies of censorship by intimidation.”

Tepker advised, “Teachers need to develop defensible teaching strategies to resist. There must be more attention to the influence of race and gender in our history and civic life. We must not insist our teachers go backwards ― backwards to days when the Tulsa Race Riot could not be discussed; backwards to a ‘Gone with the Wind’ perspective on the Civil War and its impact on the American heritage; backwards to a storybook view of the nation.”

He questioned how “Oklahoma’s so-called leaders expect teachers to discuss the book and upcoming movie ‘Killers of the Flower Moon.' The murky words of HB 1775 offer little real leadership. So, teachers must prepare for undue political influence. The appearance of ideological indoctrination must be avoided. Illiberal liberalism is hard to defend. Sponsoring debate and discussion is better than inculcation of a new ideologically dictated set of ‘truths.’ ”

Bob Nelon, a nationally known media and First Amendment lawyer in Oklahoma City, sees considerable grounds for arguing teachers’ free-speech rights in relation to HB 1775. In response to my inquiry, he briefed a nine-page analysis in which he concludes the statute is unconstitutional.

Invoking language from the Supreme Court, Nelon emphasized, “If educated professionals do not clearly understand what they are permitted and not permitted to teach — and thus ‘steer far wider of the unlawful zone’ — then the statute is unconstitutionally vague and overbroad, it interferes with the teacher’s academic freedom, and it impedes the ‘wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.’ ”

His basis for that argument included analysis of case law regarding academic freedom and regulation of the speech of government employees, contrasting HB 1775 with the Oklahoma Academic Standards through which the Oklahoma State Department of Education prescribes the curriculum for K-12 public school students, but preserves “teachers’ academic freedom to instruct using words and methodologies they believe appropriate and best suited to convey the history, historical context, and sociopolitical issues students should learn consistent with the OAS.”

“All of this is to say it appears that HB 1775 unduly constrains teachers from addressing, discussing, or providing context for much of the history of our country — a history that contains many events that, in retrospect, make us uncomfortable, but about which we need to know and be able to discuss openly,” Nelon said.

Robert L. Kerr teaches Media Law and Media History at the University of Oklahoma. More information on Free Speech Week: (https://www.freespeechweek.org/)

This article originally appeared on Oklahoman: Guest column: What does Oklahoma HB 1775 mean for free speech?