Black Emergency Response Team v. Drummond

Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS September 9, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ BLACK EMERGENCY RESPONSE TEAM; UNIVERSITY OF OKLAHOMA CHAPTER OF THE AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, Plaintiffs, and OKLAHOMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; AMERICAN INDIAN MOVEMENT INDIAN TERRITORY; PRECIOUS LLOYD, as next friend of S.L.; ANTHONY CRAWFORD; REGAN KILLACKEY, Plaintiffs - Appellants/Cross- Appellees, v. Nos. 24-6139, 24-6140 & 24-6141 GENTNER DRUMMOND, in his official capacity as Oklahoma Attorney General; LINDEL FIELDS, in his official capacity as Oklahoma Superintendent of Public Instruction; BRIAN BOBEK; JOHN “WES” NOFIRE; MIKE TINNEY; RYAN DEATHERAGE; CHRIS VAN DEHENDE; BECKY CARSON, in their official capacities as members of the Oklahoma State Board of Education; KEVIN STITT, in his  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 2 official capacity as Governor of Oklahoma, Defendants - Appellees/Cross- Appellants, and JOHN R. BRAUGHT; ANITA HOLLOWAY; RICK NAGEL; ROBERT ROSS; NATALIE SHIRLEY; ERIC STEVENSON; KENNETH S. WAITS, in their official capacities as members of the University of Oklahoma Board of Regents; DENNIS CASEY; COURTNEY WARMINGTON; STEVEN TAYLOR; TREVOR S. PEMBERTON; P. MITCHELL ADWON, JR.; BRIAN BELLER; KEN LEVIT; JACK SHERRY; MICHAEL TURPEN, in their official capacities as the Oklahoma State Regents for Higher Education; INDEPENDENT SCHOOL DISTRICT NO. 12 OF OKLAHOMA COUNTY, OKLAHOMA, a/k/a Edmond Public Schools, Defendants. ------------------------------ OKLAHOMA APPLESEED CENTER FOR LAW AND JUSTICE; AMERICAN FEDERATION OF TEACHERS; AFT-OKLAHOMA; NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.; SOUTHERN POVERTY LAW CENTER; NATIONAL ACADEMY OF EDUCATION; STATE OF SOUTH CAROLINA; STATE OF ALABAMA; 2  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 3 STATE OF ARKANSAS; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF IOWA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MISSOURI; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF SOUTH DAKOTA; STATE OF TENNESSEE; STATE OF TEXAS; STATE OF INDIANA; OKLAHOMA COUNCIL OF PUBLIC AFFAIRS, Amici Curiae. _________________________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:21-CV-01022-G) _________________________________ Emerson Sykes, American Civil Liberties Union Foundation, New York, New York (Leah Watson and Sarah Hinger, American Civil Liberties Union Foundation, New York, New York; Dariely Rodriguez, Michael Pillera, Maya Brodziak, and Catherine M. Blalock, Lawyers’ Committee for Civil Rights Under Law, Washington, District of Columbia; Megan Lambert, Rebecca Barrett, and Travis Handler, American Civil Liberties Union Foundation of Oklahoma, Oklahoma City, Oklahoma; and Douglas Koff, Julia Beskin, Sara Solfanelli, and Kevin Scot Johns, McDermott Will & Schulte LLP, New York, New York, with him on the briefs), for Plaintiffs-Appellants/Cross-Appellees. Will Flanagan, Assistant Solicitor General (Garry M. Gaskins, II, Solicitor General, and Zach West, Director of Special Litigation, with him on the briefs), Office of the Attorney General, State of Oklahoma, Oklahoma City, Oklahoma, for Defendants-Appellees/Cross-Appellants. Brent L. Rowland, Oklahoma Appleseed Center for Law and Justice, Inc., Tulsa, Oklahoma, filed an amicus curiae brief on behalf of Oklahoma Appleseed Center for Law and Justice in support of Plaintiffs- Appellants/Cross-Appellees. 3  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 4 Charles G. Moerdler, Harry Sandick, Joshua M. Goldman, and Benjamin T. Seymour, Patterson Belknap Webb & Tyler LLP, New York, New York, filed an amicus curiae brief on behalf of American Federation of Teachers and AFT- Oklahoma in support of Plaintiffs-Appellants/Cross-Appellees. Stephen G. Masciocchi and Mary Elizabeth Beasley, Holland & Hart LLP, Denver, Colorado, and Amy I. Berman, National Academy of Education, Washington, District of Columbia, filed an amicus curiae brief on behalf of National Academy of Education in support of Plaintiffs-Appellants/Cross- Appellees. Avatara Smith-Carrington, Jin Hee Lee, and Mide Odunsi, NAACP Legal Defense & Educational Fund, Inc., Washington, District of Columbia, filed an amicus curiae brief on behalf of NAACP Legal Defense & Educational Fund, Inc., and Southern Poverty Law Center in support of Plaintiffs- Appellants/Cross-Appellees. Alan Wilson, Attorney General; Thomas T. Hydrick, Solicitor General; Joseph D. Spate, Deputy Solicitor General, South Carolina Office of the Attorney General, Columbia, South Carolina; Steve Marshall, Attorney General, State of Alabama; Tim Griffin, Attorney General, State of Arkansas; James Uthmeier, Attorney General, State of Florida; Chris Carr, Attorney General, State of Georgia; Raúl Labrador, Attorney General, State of Idaho; Theodore E. Rokita, Attorney General, State of Indiana; Brenna Bird, Attorney General, State of Iowa; Kris Kobach, Attorney General, State of Kansas; Liz Murrill, Attorney General, State of Louisiana; Catherine Hanaway, Attorney General, State of Missouri; Austin Knudsen, Attorney General, State of Montana; Michael T. Hilgers, Attorney General, State of Nebraska; Drew Wrigley, Attorney General, State of North Dakota; Dave Yost, Attorney General, State of Ohio; Marty Jackley, Attorney General, State of South Dakota; Jonathan Skrmetti, Attorney General, State of Tennessee; and Ken Paxton, Attorney General, State of Texas, filed an amicus curiae brief on behalf of the States of South Carolina, Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, and Texas in support of Defendants-Appellees/Cross-Appellants. Ryan Haynie, OCPA Center for Law & Liberty, Oklahoma City, Oklahoma, filed an amicus curiae brief on behalf of Oklahoma Council of Public Affairs in support of Defendants-Appellees/Cross-Appellants. _________________________________ Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges. _________________________________ 4  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 5 PHILLIPS, Circuit Judge. _________________________________ 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.” Okla. Stat. tit. 70, § 24-157(B)(1). Each concept is a principle that, if taught, would advocate race or sex discrimination. 1 Id. § 24-157(B)(1)(a)–(h). If a school employee violates subsection B, his or her license or certificate may be suspended or even revoked. See Okla. Admin. Code § 210:10-1-23(j). Several teachers, students, parents, and their organizations sued, claiming that subsection B is unconstitutional. As they interpret it, subsection B violates students’ First Amendment right to receive information, and it is vague under the Fourteenth Amendment for not specifying what qualifies as a violation. In an omnibus order resolving several defendants’ dispositive motions, the district court granted judgment on the pleadings in favor of the defendants on the plaintiffs’ right-to-receive-information claims. And in a companion order issued the same day, the court also declined to recognize those claims as a basis for a preliminary injunction, because “no injunction would be appropriate based on” claims the plaintiffs had already lost. 1 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.” See Exec. Order No. 13950, 85 Fed. Reg. 60683, 60685 (Sept. 22, 2020). 5  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 6 The court likewise rejected most of the plaintiffs’ vagueness claims as a basis for a preliminary injunction. But it concluded that the plaintiffs were likely to show vagueness in subsection B’s use of the word “require” and in two of the prohibited concepts. So the court preliminarily enjoined the defendants from enforcing only those three parts of subsection B. The parties cross-appealed the injunction order. The defendants challenge the court’s rulings that the plaintiffs are likely to show that some parts of subsection B are vague, while the plaintiffs challenge the opposite rulings about subsection B’s remaining language. The plaintiffs also challenge the court’s decision not to enjoin subsection B’s enforcement based on their First Amendment claims. Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we hold that the district court abused its discretion by enjoining the enforcement of any part of subsection B for vagueness. As we interpret it, subsection B prohibits school employees from teaching the prohibited concepts as correct principles or requiring teachers to do so. 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.” Okla. Stat. tit. 70, § 24-157(B)(1)(a), (e). 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. 6  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 7 Under subsection B’s plain text, the plaintiffs aren’t likely to show that subsection B is vague. We don’t address the plaintiffs’ First Amendment right-to-receive- information claims, because the plaintiffs fail to show that we have appellate jurisdiction to do so. We vacate the preliminary injunction and remand for further proceedings. 2 BACKGROUND I. Legal Background In 2021, Oklahoma’s legislature passed H.B. 1775. 2021 Okla. Sess. Laws Ch. 426 (codified at Okla. Stat. tit. 70, § 24-157). The law became effective in July 2021. Id. § 2. H.B. 1775 consists of subsections A and B. Subsection A applies to higher education and is not at issue in this appeal. This appeal is about subsection B, which applies to elementary-, middle-, and high-school (K–12) education. Okla. Stat. tit. 70, § 24-157(B). Subsection B reads as follows: B. The provisions of this subsection shall not prohibit the teaching of concepts that align to the Oklahoma Academic 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, We deny as moot the appellees’ motion to file volume II of their 2 appendix under seal. 7  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 8 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. The State Board of Education shall promulgate rules, subject to approval by the Legislature, to implement the provisions of this subsection. Id. Subsection B begins with a general statement protecting “the teaching of concepts that align to the Oklahoma Academic Standards.” Id. The Academic Standards are “standards for instruction” adopted by the State Board of Education. Id. § 11-103.6(A)(1). They “serve as expectations for what students should know and be able to do by the end of the school year.” Okla. State Dep’t 8  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 9 of Educ., Oklahoma Academic Standards (last modified July 16, 2026), https:// oklahoma.gov/education/services/standards-learning/oklahoma-academic- standards.html [https://perma.cc/88SE-WKG5]; see also Okla. Admin. Code § 210:15-3-1. 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.” Oklahoma Academic Standards, supra. Subsection B ends by authorizing the State Board of Education to implement appropriate rules. Okla. Stat. tit. 70, § 24-157(B)(2). 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.” 3 Okla. Admin. Code § 210:10-1-23(c). 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.” Id. § 210:10-1-23(j)(1). And if the violation is “willful,” the Board “shall initiate proceedings to revoke [the employee’s] license or certificate.” Id. § 210:10-1-23(j)(2). 3 “To ensure compliance with” subsection B, the rule also prohibits several additional activities, including “adopting programs or utilizing textbooks, instructional materials, curriculum, classroom assignments, orientation, interventions, or counseling that include, incorporate or are based on” the eight “discriminatory concepts.” Okla. Admin. Code § 210:10-1- 23(d)(3). 9  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 10 II. Procedural History A. Complaint In fall 2021, seven plaintiffs sued thirty state and local officials in the Western District of Oklahoma. Based on their reading of H.B. 1775 as enacted, the plaintiffs asked the district court to permanently enjoin the statute’s enforcement and to declare the statute and its implementing rule unconstitutional. Five of the seven plaintiffs sued about subsection B. Those five plaintiffs (“the K–12 plaintiffs”) are • the Oklahoma State Conference of the NAACP, whose members include students, employees, and parents of students at Oklahoma K– 12 public schools; • the American Indian Movement (AIM) Indian Territory, whose members include parents of students at Oklahoma K–12 public schools; • Precious Lloyd, on behalf of her daughter S.L., who was then a junior at an Oklahoma public high school; and • Anthony Crawford and Regan Killacky, two teachers at Oklahoma public high schools. 4 The other two plaintiffs were (1) the Black Emergency Response Team, 4 “a group of Black student leaders at [the University of Oklahoma] dedicated to creating a safer and more supportive university experience for Black students,” App. vol. I at 65; and (2) the University of Oklahoma’s chapter of the American Association of University Professors, whose members include faculty and other academic professionals. Both groups sued about subsection A but later voluntarily dismissed their claims. 10  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 11 Fourteen of the thirty defendants were sued at least partly for their alleged roles in enforcing subsection B. Those fourteen defendants were • Oklahoma’s attorney general; • Oklahoma’s education superintendent, who is also the president of the State Board of Education; • the six other members of the State Board of Education; • Oklahoma’s governor; • the superintendent of Edmond Public Schools, Oklahoma’s third- largest school district; and • the four members of the Edmond Public Schools’ Board of Education. 5 All fourteen defendants were sued in their official capacities. The plaintiffs later amended their complaint to replace the five Edmond Public Schools officials with Independent School District No. 12, Oklahoma County, Oklahoma. The K–12 plaintiffs brought four claims about subsection B: • that it is unconstitutionally vague under the Fourteenth Amendment’s due-process clause, facially and as applied; • that it violates students’ First Amendment right to receive information and ideas, facially and as applied; 5 The other sixteen defendants were (1) the nine members of Oklahoma’s State Regents for Higher Education and (2) the seven members of the University of Oklahoma’s Board of Regents. They were sued for their alleged roles in enforcing subsection A. All claims against the University of Oklahoma’s Board of Regents were later dismissed. 11  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 12 • that it is overbroad and viewpoint discriminatory under the First Amendment, facially and as applied 6; and • that it violates students’ rights under the Fourteenth Amendment’s equal-protection clause to be free from racial discrimination. B. Dispositive Motions All defendants moved either to dismiss the complaint under Federal Rule of Civil Procedure 12(b) or for judgment on the pleadings under Rule 12(c). The district court decided those dispositive motions in a single order. See Black Emergency Response Team v. Drummond (BERT I), 737 F. Supp. 3d 1158, 1182–83 (W.D. Okla. 2024). The omnibus order addressed several parties and claims that aren’t relevant to this appeal. For our purposes, it’s enough to note just three of the court’s rulings. First, the district court granted judgment on the pleadings against the K– 12 plaintiffs on all First Amendment claims challenging subsection B. Id. at 1182. The court interpreted subsection B as being “directed to the curricular speech of K-12 teachers.” Id. at 1177. After concluding that “such curricular speech is not protected by the First Amendment,” the court ruled that the K–12 plaintiffs had no plausible overbreadth or viewpoint-discrimination claims. See id. at 1176–77. The court next ruled that “[t]he right to receive information is a corollary of the speaker’s right to express it.” Id. at 1177 n.16. And from that, 6 The overbreadth-and-viewpoint-discrimination claim mentions neither subsection B nor the K–12 plaintiffs. But the defendants and the district court appear to have read the claim to apply to both subsections A and B. 12  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 13 the court reasoned, “it follows that there is no plausible claim for a violation of” the K–12 plaintiffs’ right to receive the information described in subsection B. Id. At the end of the order, the court stated that “[j]udgment on these claims shall be entered at the conclusion of the litigation.” Id. at 1182. Second, the district court declined to resolve the merits of any Fourteenth Amendment vagueness claims about subsection B, “pending certification of questions of law and a response from the Oklahoma Supreme Court.” 7 Id.; see also id. at 1178. Third, the district court dismissed all claims against Independent School District No. 12. Id. at 1183. So the nine remaining subsection B defendants (“the K–12 defendants”) became (1) Oklahoma’s attorney general; (2) Oklahoma’s education superintendent, who is also the president of the State Board of Education; (3) the six other members of the State Board of Education; and (4) Oklahoma’s governor. C. Preliminary Injunction Separately, the plaintiffs asked the district court to preliminarily enjoin the statute’s enforcement while the litigation proceeded. The plaintiffs premised their request on their vagueness and First Amendment claims but not on their equal-protection claims. The same day the court ruled on the 7 As we address later, because the K–12 plaintiffs had separately sought a preliminary injunction, the district court still needed to determine the K–12 plaintiffs’ likelihood of succeeding on the merits of their vagueness claims. 13  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 14 dispositive motions, it preliminarily enjoined the enforcement of parts of subsection B. See Black Emergency Response Team v. Drummond (BERT II), 737 F. Supp. 3d 1136, 1157 (W.D. Okla. 2024). 1. Vagueness Based on their reading of subsection B, the K–12 plaintiffs argued that each of the eight prohibited concepts was unconstitutionally vague. They also argued that subsection B’s language preceding the eight concepts was vague in its use of “require,” “make part of a course,” and “align to.” The district court concluded that the K–12 plaintiffs were likely to succeed on some, but not all, of their vagueness claims. See id. at 1149–56. The court first considered the prohibition that no school employee “shall require or make part of a course the following concepts.” Okla. Stat. tit. 70, § 24- 157(B)(1). The court saw no vagueness in the wording of “make part of a course.” BERT II, 737 F. Supp. 3d at 1150. It explained that when “read in conjunction with the eight prohibited concepts,” the term’s “plain and ordinarily understood meaning” was “to prohibit school personnel from directly endorsing, promoting, or inculcating any concept as a normative value.” Id. But the court struggled to make sense of “require . . . the following concepts.” Okla. Stat. tit. 70, § 24-157(B)(1). In parsing this, the court gleaned “an illogical mismatch between verb and object.” BERT II, 737 F. Supp. 3d at 1150. As the court put it, for subsection B “to generally direct that a concept may not be required opens the statute to a variety of interpretations.” Id. So the 14  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 15 court concluded that subsection B was likely “unconstitutionally vague as to the term ‘require’ in the introductory verb clause.” Id. The court then examined the text of the eight prohibited concepts. See Okla. Stat. tit. 70, § 24-157(B)(1)(a)–(h). The court decided that six of the eight concepts—(a), (b), (e), (f), (g), and (h)—were “sufficiently clear.” See BERT II, 737 F. Supp. 3d at 1151, 1153–54. But it concluded that the K–12 plaintiffs were likely to show that the words “treatment” and “treat” in concepts (c) and (d) rendered those concepts vague. 8 See id. at 1152–53. In the court’s view, “treatment” and “treat” were “expansive in scope”— broad enough to prohibit a teacher from “making part of a course ideas that are subjects of current political debate” (like the propriety of race- and sex-based affirmative action) and from “endorsing ideas that are widely accepted and are reflected in current law” (like gendered sports leagues for children). See id. at 1152–53. Though the court recognized that “[i]n some instances, that type of broad scope might be merely broad and not also ambiguous,” it held that “the totality of [H.B. 1775] reflects that these provisions are simply unclear.” Id. at 8 Again, concept (c) reads that “an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex.” Okla. Stat. tit. 70, § 24-157(B)(1)(c). And concept (d) reads that “members of one race or sex cannot and should not attempt to treat others without respect to race or sex.” Id. § 24-157(B)(1)(d). 15  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 16 1152. The court also described concept (d)’s wording as “cumbersome” for its “rarely seen triple negative.” 9 Id. (citation omitted). Finally, the court considered subsection B’s protection for “the teaching of concepts that align to the Oklahoma Academic Standards.” Okla. Stat. tit. 70, § 24-157(B). The court read this provision as “expressly protecting the teaching of ‘concepts that align to’ listed topics that include, and reasonably require discussion of, past and present race and sex discrimination.” BERT II, 737 F. Supp. 3d at 1155. Though the court didn’t interpret “align to,” it concluded that the Academic Standards “largely if not entirely embrace the topics identified by Plaintiffs as potentially affected by” the six concepts other than (c) and (d). Id. After ruling that the K–12 plaintiffs were likely to succeed on some of their vagueness claims, the court ruled that the K–12 plaintiffs also met the other requirements for preliminary injunctive relief. So the court enjoined the K–12 defendants from enforcing (1) “the word ‘require’ in [subsection B’s] introductory verb clause,” (2) prohibited concepts (c) and (d) “in their entireties,” and (3) subsection B’s implementing rule, “to the extent [the rule is] inconsistent with this Order.” Id. at 1157. 9 In context, concept (d) reads that “[n]o [school employee] shall require or make part of a course the . . . concept[] . . . [that] members of one race or sex cannot and should not attempt to treat others without respect to race or sex.” Okla. Stat. tit. 70, § 24-157(B)(1), (1)(d). 16  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 17 2. First Amendment The district court declined to preliminarily enjoin subsection B’s enforcement based on the K–12 plaintiffs’ First Amendment claims. See id. at 1156. Referring to its companion order, BERT I, the court noted that it “ha[d] determined . . . that Plaintiffs’ claims based on the First Amendment should be dismissed because Plaintiffs have not shown that [subsection B] infringes on their First Amendment rights.” Id. “Therefore,” the court declared, “no injunction would be appropriate based on Plaintiffs’ claims challenging [subsection B] as violative of the First Amendment.” Id. D. Appeal & Cross-Appeal The K–12 plaintiffs timely appealed BERT II’s partial denial of a preliminary injunction on the remainder of their vagueness claims and on all their First Amendment right-to-receive-information claims. 10 That appeal is docketed as No. 24-6139. The K–12 defendants timely appealed BERT II’s partial grant of a preliminary injunction for vagueness in the above three parts of subsection B. That appeal is docketed as No. 24-6141. We consolidated those appeals, along with a third brought by some non- K–12 defendants, which is docketed as No. 24-6140. After several voluntary dismissals in the district court, including dismissals of certain claims related to The K–12 plaintiffs didn’t appeal BERT II as it applied to their 10 combined First Amendment overbreadth-and-viewpoint-discrimination claims. 17  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 18 subsection A, the parties agree that only subsection B is before us and that the relevant appellate parties are the K–12 plaintiffs and the K–12 defendants. E. Certification Two months after ruling on the motion for a preliminary injunction, the district court certified six questions to the Oklahoma Supreme Court. See Black Emergency Response Team v. Drummond, No. CIV-21-1022, 2024 WL 5715864, at *3–4 (W.D. Okla. Aug. 27, 2024). Three of those questions concerned the parts of subsection B that the district court ruled were likely vague. See id. at *4. Specifically, the court asked the Oklahoma Supreme Court “what . . . it mean[s]” (1) to “‘require’ an identified ‘concept,’” (2) to “make part of a course the concept [that] an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex,” and (3) to “make part of a course the concept [that] members of one race or sex cannot and should not attempt to treat others without respect to race or sex.” Id. (citation modified). The Oklahoma Supreme Court declined to answer those three questions. Black Emergency Response Team v. Drummond, 571 P.3d 135, 141 (Okla. 2025). It noted that “[c]ertification is useful where an interpretation of state statutory law can potentially eliminate the need to address a federal question.” Id. But because defining the disputed terms “in the abstract” would not “avoid or alter the constitutional challenge,” the court declined to do so, observing that “[f]ederal courts bear a duty to decide questions of state law when necessary to 18  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 19 render a judgment.” Id. at 142. The court added that because “even an implicit resolution by a state court of a federal constitutional claim is not binding on the federal courts,” “any holding . . . would be, at most, advisory in nature.” Id. STANDARD OF REVIEW We review for abuse of discretion a district court’s grant or denial of a preliminary injunction. Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792, 796 (10th Cir. 2019). A court abuses its discretion when its decision “rests on an error of law or a clearly erroneous finding of fact” or “manifests a clear error in judgment.” United States v. Kirby, 161 F.4th 1208, 1213 (10th Cir. 2025) (citation modified). DISCUSSION We interpret subsection B as prohibiting school employees from teaching, or requiring teachers to teach, the eight discriminatory concepts as correct principles. That being so, we reverse the district court’s rulings that the K–12 plaintiffs are likely to show that some parts of subsection B are vague under the Fourteenth Amendment. For lack of briefing on appellate jurisdiction, we decline to review the K–12 plaintiffs’ First Amendment right-to-receive- information claims. We vacate the preliminary injunction and remand for further proceedings. I. Fourteenth Amendment Vagueness Claims “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in 19  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 20 the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). “An injunction can issue only if each factor is established.” Denv. Homeless Out Loud v. Denver, 32 F.4th 1259, 1277 (10th Cir. 2022). No party challenges the district court’s rulings about irreparable harm, the balance of equities, or the public interest. See generally BERT II, 737 F. Supp. 3d at 1156–57. So we consider only the rulings about the likelihood of the K–12 plaintiffs succeeding on the merits of their vagueness claims. Within our abuse-of-discretion analysis for preliminary injunctions, the likelihood of showing vagueness is a legal question that we review de novo. See Derma Pen, LLC v. 4EverYoung Ltd., 773 F.3d 1117, 1119–20 & n.2 (10th Cir. 2014); United States v. Jimenez-Marquez, 171 F.4th 1204, 1209–10 (10th Cir. 2026). We interpret subsection B as prohibiting school employees from teaching the eight discriminatory concepts as correct principles or requiring teachers to do so. So we agree with the district court that the K–12 plaintiffs are unlikely to show vagueness in concepts (a)–(b) and (e)–(h) or in the wording of “make part of a course.” But we disagree that the K–12 plaintiffs are likely to show 20  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 21 vagueness in concepts (c) and (d) and in the word “require.” On those points, the court abused its discretion in enjoining subsection B’s enforcement. 11 A. Vagueness Defined A law can be unconstitutionally vague “for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” Wyo. Gun Owners v. Gray, 83 F.4th 1224, 1233 (10th Cir. 2023) (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)). “Where a law deals with areas of First Amendment import,” we apply “stricter standards of permissible . . . vagueness.” 12 Dr. John’s, Inc. v. City of Roy, 465 F.3d 1150, 1157 (10th Cir. 2006) (citation modified). We also allow 11 Because it wouldn’t change our conclusion, we need not decide whether the district court “erred in declining to treat [the K–12 plaintiffs’] request as a disfavored injunction” for disturbing the status quo. Defs.’ Resp. & Open. Br. at 64; see BERT II, 737 F. Supp. 3d at 1145–46. We also need not decide whether the court erred in not limiting the injunction to subsection B’s enforcement against the K–12 plaintiffs. See BERT II, 737 F. Supp. 3d at 1157. Finally, we don’t address the scope of subsection B’s implementing rule or whether that rule is itself unclear. See generally Okla. Admin. Code § 210:10- 1-23. By hinting at these issues for the first time in their reply brief, the K–12 plaintiffs waived any argument about them. See United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019). 12 Though we decline to address the K–12 plaintiffs’ First Amendment right-to-receive-information claims, we assume that subsection B “deals with areas of First Amendment import,” warranting “a more stringent vagueness test.” Dr. John’s, Inc. v. City of Roy, 465 F.3d 1150, 1157 (10th Cir. 2006) (first quote); Wyo. Gun Owners, 83 F.4th at 1234 (citation omitted) (second quote); see, e.g., Epperson v. Arkansas, 393 U.S. 97, 104–05 (1968). 21  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 22 two kinds of vagueness challenges: facial and as applied. See United States v. Walker, 74 F.4th 1163, 1184 (10th Cir. 2023). Under those standards, a law is facially vague if it is “vague in the vast majority of its applications,” such that “vagueness permeates [its] text.” 13 Dr. John’s, 465 F.3d at 1157 (citation modified). A law isn’t saved from facial vagueness “merely because there is some conduct that clearly falls within [its] grasp.” Johnson v. United States, 576 U.S. 591, 602 (2015). Still, “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” United States v. Williams, 553 U.S. 285, 304 (2008) (citation omitted). If the law “has a plainly legitimate sweep” or “communicates its reach in words of common understanding,” it isn’t facially vague. Wash. State Grange v. Wash. State Repub. Party, 552 U.S. 442, 449 (2008) (citation modified) (first quote); Boos v. Barry, 485 U.S. 312, 332 (1988) (second quote). 13 The K–12 defendants ask us to use the “no set of circumstances” test from United States v. Salerno, 481 U.S. 739 (1987). That test requires a facial challenger to show “that no set of circumstances exists under which [a law] would be valid.” Id. at 745. But we entertain facial challenges in two situations: (1) when a law “deals with areas of First Amendment import,” Dr. John’s, 465 F.3d at 1157; and (2) when a law is challenged before its enforcement. Walker, 74 F.4th at 1184. And we apply the “no set of circumstances” test only for laws exclusively in the latter category—i.e., laws that are challenged before their enforcement but that don’t potentially implicate the First Amendment. See Dias v. City & Cnty. of Denv., 567 F.3d 1169, 1179–80 (10th Cir. 2009); see generally Johnson v. United States, 576 U.S. 591, 602–03 (2015) (describing the test as inconsistent with the Supreme Court’s facial-vagueness holdings even in cases with no First Amendment implications). 22  Appellate Case: 24-6139 Document: 162 Date Filed: 09/09/2026 Page: 23 By contrast, for a law to be vague as applied, it must be “[un]clear in light of the conduct to which it was applied.” Fabrizius v. Dep’t of Agric., 129 F.4th 1226, 1238 (10th Cir. 2025) (citation omitted). Because an as-applied challenge attacks a law “as applied to particular parties in particular circumstances,” such a challenge necessarily “involve[s] a factual dimension.”