Cases & Developments

Order Responding to Certified Questions. Petitioners, a coalition of civil rights organizations and university affiliates, challenged 71 O.S. § 24-157, enacted through Oklahoma House Bill 1775, which “prohibits mandatory gender and sexual diversity training . . . [i]n relation to public colleges or universities, the law states: No enrolled student of an institution of higher education within The Oklahoma State System of Higher Education shall be required to engage in any form of mandatory gender or sexual diversity training or counseling; provided, voluntary counseling shall not be prohibited. Any orientation or requirement that presents any form of race or sex stereotyping or a bias on the basis of race or sex shall be prohibited.” Petitioners argued that the law violated the First and Fourteenth Amendments by restricting classroom speech and access to ideas related to race and gender. The district court, after issuing a preliminary injunction enjoining enforcement of key portions of the statute on vagueness grounds, certified six questions of state law to the Oklahoma Supreme Court. The court responded to the first three questions: (1) whether the Oklahoma law overstepped the Legislature’s authority to control the internal operations of public universities; (2) defining the term “requirement” in the context of the ban on mandatory content involving race or sex stereotyping; and (3) defining the term “present” as it relates to teaching on race or sex stereotyping and whether it includes all references, discussions or portrayals. The court stated “[w]e answer the first three certified questions by determining that the term ‘requirement’ in § 24-157(A)(1) pertains only to orientation requirements and does not apply to classes, courses, or curricular speech.” After the court concluded that the narrowed scope of the definition does not implicate curricular speech and thus does not infringe upon principles of academic freedom, the court stated that it “has no reason to answer the remaining certified questions” and determined that plaintiffs lacked standing to challenge the law. The court declined to answer the remaining certified questions related to § 24-157(B)(1), finding that interpretation of those provisions would not avoid the federal constitutional issues raised and would risk rendering an advisory opinion. The court also made note that the federal questions raised could be impacted or rendered moot by Executive order 14190 “Ending Radical Indoctrination in K-12 Schooling” and declined to make that determination.