pack v. state poe amicus brief regarding constitutionality of hb3399

8/11/2019 Pack v. State POE Amicus Brief Regarding Constitutionality of HB3399

1/29


2/29

i

INDEX

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. WHAT DOES HB 3399 ACTUALLY DO? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Okla. Admin. Code 210:15-4-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

http://www.corestandards.org/about-the-standards/frequently-asked-questions/ . . . . 3

Okla. Admin. Code 210:15-3-1 210:15-3-26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Okla. Admin. Code 210:15-4-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Okla. Admin. Code 210:15-3-70 210:15-3-83 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2014 HJR 1099 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

75 Okla. Stat. 308.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

http://ok.gov/sde/oklahoma-academic-standards#OC3Science . . . . . . . . . . . . . . . . . . 4

http://ok.gov/sde/oklahoma-academic-standards#OC3SocStud . . . . . . . . . . . . . . . . . .4

70 Okla. Stat. 11-103.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

70 Okla. Stat. 11-103.6a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

75 Okla. Stat. 250 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

III. WHAT IS THE CONSTITUTIONAL STATUS OF THE STATE BOARD OFEDUCATION?

Article 13, 5, Oklahoma Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7







3/29

ii



Board of Education of Ardmore v. State ex rel. Best , 1910 OK 118 . . . . . . . . . . . . . . 8

School District No. 62 v. School District No. 17 , 1930 OK 112 . . . . . . . . . . . . . . . . . 9

Robinson v. Thorpe , 1931 OK 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Musick v. State ex rel. Miles , 1938 OK 603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fair School Finance Council of Oklahoma, Inc. v. State , 1987 OK 114 . . . . . . . . . . 9

School District No. 25 v. Hodge , 1947 OK 220 . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11

Oklahoma Farm Bureau v. State Board of Education , 1968 OK 98 . . . . . . . . . . .11-12 Board of Regents v. Baker , 1981 OK 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1995 OK AG 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Regents of University v. Board of Education , 1908 OK 67 . . . . . . . . . . . . . . . . . . . . 13

http://www.okhighered.org/state-system/overview/part2.shtml . . . . . . . . . . . . . . . . 13

Oklahoma State Question 300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14



Article 13, 8, Oklahoma Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

IV. WHAT IS THE HISTORIC ROLE OF THE LEGISLATURE WITH RESPECTTO CURRICULUM STANDARDS?


Robinson v. Thorpe , 1931 OK 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

In re ODOT , 2002 OK 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

A Nation at Risk (1983 National Commission on Excellence in Education) . . . . . . . 16

70 Okla. Stat. 11-103.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16


4/29

iii

1989 1st Extr. Sess. HB 1017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

The Goals 2000: Educate America Act of 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

No Child Left Behind Act of 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

2010 SB 2033 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

http://racetotop.com . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2011 SB 435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

70 Okla. Stat. 3-101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

http://www2.ed.gov/policy/elsec/guid/esea-flexibility/index . . . . . . . . . . . . . . . . . . .17

ESEA Flexibility Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182014 HB 3399 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19

The State of State Standards and the Common Core in 2010 . . . . . . . . . . . . . . . .19

75 Okla. Stat. 308.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

In re ODOT , 2002 OK 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

V. IS 4 of HB 3399 SEVERABLE?

Impact Analysis of HB 3399 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

VI. CONCLUSION


5/29

1

IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

CHARLES EDWARD PACK, II;MARA NOVY;LEONARDO DE ANDRADE;

ELIZABETH LUECKE;NANCY KUNSMAN;HEATHER SPARKS;LEO. J. BAXTER;AMY ANNE FORD;WILLIAM F. SHDEED;and DANIEL KEATING,

Petitioners,

v.

STATE OF OKLAHOMA; PRESIDENTPRO TEMPORE OF THE OKLAHOMASENATE; SPEAKER OF THE HOUSEOF REPRESENTATIVES; THEOKLAHOMA STATE DEPARTMENTOF EDUCATION,

Respondents.

)))

)))))))))))

)))))))))

O-112974

AMICUS CURIAE BRIEF OFASSOCIATION OF PROFESSIONAL OKLAHOMA EDUCATORS

COMES NOW the Association of Professional Oklahoma Educators, by and through

its counsel Blake Sonne and Michael Furlong, and, pursuant to this Courts Order of July 3,

2014, granting it leave to file an amicus curiae brief, hereby presents such brief to the Court,

urging the Court to UPHOLD the constitutionality of HB 3399.

I. INTRODUCTION

The Association of Professional Oklahoma Educators (POE), is a 501(c)(6)

professional organization representing approximately 9,000 teachers, administrators, and

other education employees across Oklahoma. POE was founded in 1988 as a non-union,

nonpartisan professional organization to promote the welfare of Oklahoma educators. POE


6/29

2

has a proven track record of advocacy on education issues. POEs long-standing practice is

to survey its membership with respect to issues before the legislature. Last year, over 60% of

POEs membership supported repealing the Common Core State Standards. Thus, POE

successfully lobbied in support of HB 3399, which is the subject of this litigation.

POE sought leave from this Court to file this amicus brief for the purpose of offering

important supplemental information regarding the constitutional issues presented by

Petitioners. With over a quarter century of experience in education law and policy, POE is

uniquely suited to provide such information. Historical context is completely absent from the

briefs filed by Petitioners in this matter, which raise fundamental constitutional questionswithout vital background facts essential to a well-reasoned disposition of this matter.

POE respectfully suggests that the important constitutional questions raised in this

case should not be considered in a historical or policy vacuum. This case will have a

substantial and immediate impact on the educators that POE represents as an organization.

POE desires the Court to have all relevant information before it when deciding this case.

Therefore, POE offers the following points for this Courts consideration. Part II of

this brief summarizes HB 3399 and explains what it does and doesnt do. Part III

addresses Petitioners first constitutional argument and compares and contrasts the status of

the Oklahoma State Board of Education with the various bodies that govern higher education

in Oklahoma. Part IV addresses Petitioners second constitutional argument and details the

recent history of curriculum standards in Oklahoma. Part V addresses the severability issue

raised by Petitioners from the practical standpoint of how HB 3399 will affect education

policy if 4 of the bill is determined to be constitutionally infirm. Part VI concludes. In

sum, POE respectfully requests that this Court UPHOLD the constitutionality of HB 3399.


7/29

3

II. WHAT DOES HB 3399 ACTUALLY DO?

POE lobbied for the passage of HB 3399 and has scrutinized its provisions (including

the many versions that preceded the final version) in great detail. Thus, POE offers a brief

summary of what HB 3399 does and doesnt do.

The primary goal and sine qua non of HB 3399 is the revocation of the Common

Core State Standards in Oklahoma. Part IV of this brief addresses the recent history of

curriculum standards in Oklahoma in greater detail. However, to summarize what HB 3399

does, it is first necessary to clarify that the Common Core State Standards, which HB 3399

revokes and replaces, only pertain to mathematics and English language arts/literacy.1

See http://www.corestandards.org/about-the-standards/frequently-asked-questions/ (explaining

why the Common Core State Standards only encompass math and English).

Oklahoma has its own curriculum standards in pre-kindergarten, kindergarten,

science, social studies, the arts, world languages, health/safety education, physical education,

information literacy, instructional technology, technology engineering, and personal financial

literacy. See Okla. Admin. Code 210:15-3-1 210:15-3-26. HB 3399s repeal of the

Common Core State Standards will have little or no effect on these standards. Thus,

Petitioners assertion in their brief that HB 3399 will drastically disrupt preparations for the

2014-2015 school year is as an exaggeration, at best. Other than math and English, the only

other subjects that will be affected at all by repeal of the Common Core State Standards are

history/social studies and science for grades 6-12. Even then, HB 3399 will only revoke

extra curriculum requirements that were added to existing history/social studies and science

1 Within the Common Core State Standards scheme, literacy also includes readingstandards for history/social studies, reading standards for science, and writing standards forhistory/social studies and science. Okla. Admin. Code 210:15-4-2.


8/29

4

standards. Okla. Admin. Code 210:15-4-3(b)(2). The underlying standards in these subject

areas remain undisturbed by HB 3399. Indeed, HB 3399 actually removes the burden from

educators of incorporating additional standards in these subject areas. 2

To be sure, HB 3399 will likely affect the preparations of math and English teachers

(and to a lesser extent middle and high school history/social studies and science teachers) for

the 2014-2015 school year. However, such disruption is not as great as Petitioners suggest

because the 2014-2015 school year was the first school year in which Oklahoma schools

were actually required to implement the Common Core State Standards. According to

Oklahoma State Department of Education regulations, [t]he Priority Academic StudentSkills [Oklahomas underlying curriculum standards regime] shall remain as the assessed

standards until such time that full implementation of the Common Core State Standards are

required [the 2014-2015 school year] and common assessments aligned to those standards are

available. Okla. Admin. Code 210:15-4-3(a) (emphasis added).

Thus, under HB 3399, teachers can simply continue to use their lesson plans and

corresponding curriculum preparations from the last several school years (including the

2013-2014 school year) which were aligned to the Priority Academic Student Skills

2 The Oklahoma State Board of Education also recently incorporated a great deal of materialfrom the Next Generation Science Standards, which are independent of the Common CoreState Standards but were developed with a similarly national approach. The new sciencestandards were adopted by rule on March 25, 2014. Okla. Admin. Code 210:15-3-70 210:15-3-83. The Oklahoma House of Representatives voted to disapprove the newstandards in 2014 HJR 1099. See 75 Okla. Stat. 308.3 (authorizing an omnibus jointresolution to approve or disapprove agency rules). The measure died in the OklahomaSenate. However, the Governor is expected to approve the new standards. Thus,Oklahomas science standards will almost certainly be subject to a great deal of change in theupcoming school year regardless of HB 3399s repeal of the Common Core State Standards.See http://ok.gov/sde/oklahoma-academic-standards#OC3Science. Social Studies andHistory standards were also subject to a full-scale revision that became effective during the2013-2014 school year. See http://ok.gov/sde/oklahoma-academic-standards#OC3SocStud.


9/29

5

standards. All that HB 3399 does for now is extend the already-existing and fully-

implemented Priority Academic Student Skills standards for two additional years to 2016.

This is the precise reason why HB 3399 became such a pressing issue during the spring 2014

legislative session it was the last opportunity to revoke the Common Core State Standards

before full implementation of the new standards.

With this background in mind, HB 3399 does the following. 3 Section 2 of the bill

amends Oklahomas already-existing and highly-detailed curriculum standards statute at 70

Okla. Stat. 11-103.6 to mandate certain additional curriculum objectives including active

citizenship, rigorous subject matter standards, equal consideration of classic andnonfiction literature with other literature, and the inclusion of standard algorithms and

Euclidian geometry in mathematics standards.

Section 3 of the bill amends Oklahomas already-existing curriculum review statute

at 70 Okla. Stat. 11-103.6a to do the following: (1) revoke the Common Core State

Standards; (2) reaffirm that curriculum standards are subject to legislative approval; (3)

require that new college- and career-ready standards be developed by August 1, 2016 by

the State Board of Education, State Regents for Higher Education, State Board of Career and

Technology Education, and the Oklahoma Department of Commerce with public input; (4)

require that the current Priority Academic Student Skills standards remain in effect until new

standards are adopted; (5) require that the current Priority Academic Student Skills standards

be submitted to the State Regents for Higher Education for certification that they are

college- and career-ready; (6) require the development of new assessments; (7) prohibit the

State Board of Education from ceding control over Oklahoma curriculum standards to any

3 Sections 2, 3, and 4 of HB 3399 are summarized here. The remaining nine sections areclean-up sections or are otherwise largely irrelevant to the issues at hand.


10/29

6

outside entity 4; and (8) provide that local school districts have exclusive authority over

instruction, curriculum, reading lists and instructional materials and textbooks.

Section 4 of the bill (the subject of Petitioners constitutional challenge) provides that

all new curriculum standards and revisions are subject to legislative review. When new

standards are adopted by the State Board of Education, the Legislature may:

approve the standards, disapprove the standards in whole or in part, amend thestandards in whole or in part or disapprove the standards in whole or in partwith instructions to the State Board of Education[.]

If the Legislature fails to adopt a joint resolution to this effect or if such resolution is vetoed

by the Governor, the standards are deemed approved. If the standards are disapproved inwhole, the State Board of Education may adopt new standards and submit them for review or

allow the prior standards to remain in effect. If the standards are not disapproved in whole,

then the State Board of Education may revise the standards in accordance with any legislative

changes and may then implement the standards without additional legislative approval.

HB 3399 makes clear that 4s legislative review process supersedes the process

delineated in Article I (rulemaking) of the Oklahoma Administrative Procedures Act at 75

Okla. Stat. 250 et seq . Notably, as outlined in more detail in Part IV below, the

Administrative Procedures Act (as amended by 2013 HB 2055, which increased legislative

oversight of the rulemaking process) already gave the Legislature a great deal of oversight

with respect to the adoption of curriculum standards. Thus, HB 3399 is not as drastic of a

change as Petitioners would have the Court believe.

4 The primary criticism of the Common Core State Standards (besides various criticisms ofthe content of the standards themselves) was that adoption of the standards was tantamount toceding control over Oklahoma mathematics and English language arts/literacy to theCommon Core State Standards Initiative, a private body not subject to the control oroversight of the Oklahoma Legislature or any other state governmental entity.


11/29

7

III. WHAT IS THE CONSTITUTIONAL STATUS OF THESTATE BOARD OF EDUCATION?

Before Petitioners address the question of the extent of the Legislatures power versus

the State Board of Educations power over curriculum standards specifically, Petitioners raise

the following preliminary question:

Does HB 3399 violate art. XIII, 5 of the Oklahoma Constitution by allowingthe Legislature to infringe on the Constitutional authority of the Board?

This inquiry, as Petitioners correctly recognize, begs the underlying question of the extent of

the constitutional authority and independence of the State Board of Education. Such power

is nowhere near as broad as Petitioners claim. Rather, the State Board of Educations poweris quite circumscribed by the Oklahoma Constitution, which vests the Legislature and not the

State Board of Education, with final authority over education policy in Oklahoma.

At issue is article 13, 5 of the Oklahoma Constitution:

The supervision of public instruction in the public schools shall be vested in aBoard of Education, whose powers and duties shall be prescribed by law . TheSuperintendent of Public Instruction shall be President of the Board. Untilotherwise provided by law , the Governor, Secretary of State, and AttorneyGeneral shall be ex-officio members, and with the Superintendent, composesaid Board of Education.

(Emphasis added.) This section by itself clearly demonstrates the intent of the framers of the

Oklahoma Constitution that the Legislature would have authority to set the powers and duties

of the State Board of Education and that purely executive administration of the Board by four

executive officers, including the Superintendent of Public Instruction, would continue only

until the Legislature had provided otherwise.

As every student of Oklahoma history knows, the 1907 Oklahoma Constitution was

carefully drafted to comport with populist ideals of power divided among multiple state

entities with checks and balances among them. It thus becomes important, as a matter of


12/29

8

Oklahoma constitutional law, to determine the intended allocation of power between and

among the Legislature and the State Board of Education.

When article 13 is read as a whole and in light of its historical context it becomes

quite clear that the Legislature is entrusted with the primary oversight of Oklahoma

education, with the State Board of Education serving an administrative and supplemental

function. Article 13, 1 reads:

The Legislature shall establish and maintain a system of free public schoolswherein all the children of the State may be educated.

(Emphasis added.) The Legislature is similarly entrusted with the establishment and

support of institutions for the care and education of persons within the state who are deaf,

deaf and mute or blind (article 13, 2); 5 providing for compulsory school attendance at

some public or other school (article 13, 4); providing for a system of textbooks for the

common schools of the State (article 13, 6); and providing for the teaching of the

elements of agriculture, horticulture, stock feeding, and domestic science (article 13, 7).

Notably, while the Oklahoma Constitution made no provision for curriculum standards as

such (which are a more recent innovation, as discussed in Part IV below), it clearly placed

the Legislature in charge of textbooks and required the Legislature to provide an agricultural

curriculum. 6 See also Board of Education of Ardmore v. State ex rel. Best , 1910 OK 118, 7

(summarizing these constitutional mandates and concluding, All of these commands are

directed to the Legislature. (emphasis added)).

5 Article 13, 3, which provided for segregated schools, was wisely repealed by StateQuestion No. 428 in 1966, but was also a mandate to the Legislature.

6 As discussed below, article 13, 8, on which Petitioners so heavily rely, dealt with theBoard of Regents of the University of Oklahoma and was not adopted until 1944.


13/29

9

Almost immediately, this Court recognized the supremacy of the Legislature over

education policy in Oklahoma. For example, in 1930 the Court held:

The provisions of the Constitution directing the Legislature to establish and

maintain a system of free public schools wherein all the children of the statemay be educated is a command to the Legislature, and cannot be construed asa restriction or limitation on its power to provide free schools for [variouscategories of students].

School District No. 62 v. School District No. 17 , 1930 OK 112, 8 (emphasis added). The

following year, the Court went even further and stated:

[T]he Legislature is required by our Constitution to provide a school systemwhereby the children of the state may receive an education. These various

school districts, which have been provided by law, are organized solely for thepublic benefit. These school districts possess such authority as has beenconferred by the Legislature to be exercised within the limitations and modeprovided by the statutes. The providing of an education is purely alegislative function.

Robinson v. Thorpe , 1931 OK 22, 15 (emphasis added). In 1938, the Court held:

The Legislature is by mandate charged with the duty of establishing a publicschool system. Article 13, section 1, Oklahoma State Constitution. Themethod employed by it to discharge the burden thus imposed is largely withinits discretion.

Musick v. State ex rel. Miles , 1938 OK 603, 15 (emphasis added). More recently, the Court

affirmed once again its longstanding recognition of legislative primacy in education policy:

Article 1, 5 of the Oklahoma Constitution provides for the establishment andmaintenance of a system of public schools within the State. Article 13, 1 ofthe Constitution places the obligation of doing so upon the Legislature.

Fair School Finance Council of Oklahoma, Inc., v. State , 1987 OK 114, 5 (emphasis

added).

Given the clear constitutional delegation of power over education to the Legislature

and this Courts long-standing recognition of the Legislatures essential and primary role,

cases construing the constitutional powers of the State Board of Education are few. Indeed,


14/29

10

it seems that historically, the State Board of Education recognized that its powers were

limited to administering and enforcing the will of the Legislature with respect to public

education in Oklahoma.

In a 1947 case, the Court considered whether the Legislature could delegate any of its

powers over education to the State Board of Education beyond the State Board of

Educations constitutional power of supervision found in article 13, 5. The Courts

opinion contained its most extensive explication of the allocation of power between the

Legislature and the State Board of Education:

21 It is urged [by challengers of a massive legislative overhaul of Oklahomaeducation law] that the provisions of article 2 of the act, relating to theannexation of school districts and authorizing the exercise of power inconnection therewith upon the State Board of Education, is unconstitutionaland void.

22 It is observed that section 5 of article 13 of the Constitution of Oklahomavests in the Board of Education the power of supervision of instruction in thepublic schools of Oklahoma. By the constitutional provision, it is providedthat these powers and duties of the Board of Education shall be prescribed bylaw.

23 It is urged that the maxim expressio unius est exclusio alterius (11 Am.Jur. 57) applies, so that the alleged additional grant of power and authority,apart from supervision of instruction, strictly speaking, and relating to theannexation of school districts, may not, by statute, be granted nor conferredupon the Board of Education.

24 The constitutional provision vesting the power of supervision ofinstruction in the Board of Education is not a limitation, but a grant of power.

25 The true rule that state officers, boards, commissions, and departmentshave such powers only as have been delegated to them by expressconstitutional and statutory provisions or as may be implied from the nature ofthe particular duties imposed upon them, 59 C.J. 118 is relied upon.However, by the provisions of section 36, art. 5, Constitution of Oklahoma,the authority of the Legislature shall extend to all rightful subjects oflegislation. And, by the same section it is provided that the specific grant ofauthority contained in the Constitution, upon any subject whatever, shall not


15/29

11

work a restriction, limitation, or exclusion of such authority upon the same orany other subject.

26 It is our view that the matter of legislative conference of additionalpowers upon the board, relating to the free public school system of the state,

but extending beyond the supervision of instruction, constituted a rightfulsubject of legislation. The additional powers conferred upon the Board ofEducation by the statute were not inconsistent with the power and authoritythat had been conferred upon the board by constitutional provision, and sincetherefore within contemplation of section 36, art. 5, Constitution, supra, theprior constitutional grant of power does not exclude, by statutory provision,the conference of additional powers upon the board, the contention isuntenable and such additional powers, legislatively conferred by article 2 ofthe act, are fairly within the legislative discretion, and so, valid andconstitutional.

27 The power to determine the policy of the law is primarily legislative, andcannot be delegated, but an examination of the provisions of House Bill No.85 will disclose that the Legislature has prescribed the policy and fixed thestandards to be followed by the State Board of Education in performance ofthe duties imposed upon it by the act. It is presumed that the standardsfixed will be adhered to strictly by the board.

School District No. 25 v. Hodge , 1947 OK 220, 21-27 (emphasis added) (internal citations

omitted).

This passage is quoted at length here because it is instructive on several points. First,

the sole constitutional grant of power to the State Board of Education is supervision of the

public schools. Second, all other powers are vested in the Legislature unless and until the

Legislature confers such power on the State Board of Education. The Legislature is therefore

the font of nearly all of the State Board of Educations powers. Finally, the State Board of

Education is expected to strictly adhere to legislative commands and is not constitutionally

authorized to act independently of legislative directives and oversight.

Two decades later, in a 1968 original jurisdiction case, the Court commended

petitioners for acknowledg[ing] the Legislatures plenary power to delegate authority to the

Board to determine facts and enact rules within prescribed legislative standards. Oklahoma


16/29

12

Farm Bureau v. State Board of Education , 1968 OK 98, 22 (emphasis added). Again, the

Legislatures power, properly delegated, is a necessary condition to the State Board of

Educations ability to act.

In the face of the foregoing cases upholding the longstanding traditional allocation of

power between the Legislature and the State Board of Education, Petitioners in the instant

case nonetheless insist that the State Board of Education is almost entirely independent of

legislative oversight. Petitioners ignore over a century of precedent to argue that the State

Board of Education has the same constitutional status as the Board of Regents of the

University of Oklahoma.To support their extraordinary assertion, Petitioners point to Board of Regents v.

Baker , which held that Article XIII, 8 of the Oklahoma Constitution establishes the Board

of Regents of the University of Oklahoma as an independent body charged with the power to

govern the University. 1981 OK 160, 19. Petitioners attempt to bootstrap from this

holding to support their bold claim that: Just as art. XIII, 8 protects the universities from

excessive legislative interferences, art. XIII, 5 protects the Board from excessive legislative

interference. Br. of Petrs pp. 6-7. It is no exaggeration to state that Petitioners position

would utterly subvert the current balance of power in Oklahoma education and convert the

State Board of Education into a roving, unaccountable body subject to no meaningful

legislative oversight whatsoever.

Indeed, Petitioners interpretation of Baker misconstrues both its applicability to

higher education and its applicability to common education. On the one hand, Baker stands

for a good deal more than the protection of Oklahoma universities from excessive

legislative interference. It essentially protects them from any legislative interference at all.


17/29

13

This has been reaffirmed time and again in post- Baker cases and especially in a large number

of Attorney Generals Opinions. 7 On the other hand, the extensive constitutional history

outlined above makes it quite clear that the State Board of Education has never been viewed

as occupying the same category as the various constitutional bodies of State Regents. A brief

look at the history of the State Regents explains why.

Only a year after the Oklahoma Constitution was approved, this Court had occasion

to consider whether the State Board of Educations constitutional supervisory authority over

public schools included power over higher education. The Court gave a resounding no:

There is nothing apparent from the nature and manner of the use of the termpublic schools as it appears in section 5 of article 13 [of the OklahomaConstitution] to indicate that the constitutional convention, or the people whenthey adopted their Constitution, intended to attach to it any other significationthan its well-known, popular one. We are, therefore, irresistibly led, by bothreason and authority, to the conclusion that the term public schools, as usedin section 5, article 13, of the Constitution of Oklahoma, does not include inits meaning the University of Oklahoma[.]

Regents of University v. Board of Education , 1908 OK 67, 18.

In the early years of Oklahoma (and indeed before statehood), all higher

education institutions were creatures of the Legislature. The Oklahoma State Regents

for Higher Education have documented that as early as 1913, the need for an

independent oversight body for higher education was recognized by Governor Lee

Cruce. See http://www.okhighered. org/state-system/overview/part2.shtml. For the

next three decades, efforts to create such a body moved forward by fits and starts. Id.

7 1995 OK AG 12 is typical. There, Attorney General Drew Edmondson stated thatconstitutionally-created bodies to oversee Oklahoma higher education are not subject tolegislative oversight, but legislatively-created higher education bodies are subject tolegislative oversight: The power vested in all these Boards of Regents or Boards ofTrustees is solely statutory power, unlike the situation presented by the constitutionallycreated Boards of Regents. Thus, none of the power vested in the statutory boardsconstitutes a restriction or limit on the Legislatures power. 26.


18/29

14

It was not until 1941, that article 13A of the Oklahoma Constitution was proposed by

the Legislature and adopted via State Question 300, creating the Oklahoma State

System of Higher Education and the Oklahoma State Regents for Higher Education.

Subsequently, State Question 311 was adopted in 1944 approving article 13, 8 of

the Oklahoma Constitution and creating the Board of Regents of the University of

Oklahoma as a separate constitutional entity. Finally, State Question 328 was

adopted in 1948, approving article 13B of the Oklahoma Constitution and creating the

Board of Regents of Oklahoma Colleges.

The differences between the constitutional Boards of Regents and the State Board ofEducation are immediately apparent. For example, article 13, 8, on which Petitioners so

heavily rely, specifically vests the government of the University of Oklahoma in the Board

of Regents. This is a much greater grant of power than the mere supervisory power subject

to legislative grants of powers and duties that the State Board of Education is given in

article 13, 5. This Court recognized that difference in Baker , by acknowledging the unique

constitutional status of the Board of Regents rather than analogizing the constitutionally-

created Board of Regents to the legislatively-dependent State Board of Education.

In short, the differences between the two institutions are historic and profound. To

suggest that the State Board of Education enjoys the same constitutional status as the various

bodies of State Regents is to ask the Court to set aside decades of precedent in Oklahoma

educational and constitutional law. It is essential that the State Board of Education be kept in

its proper constitutional sphere and not be authorized by this Court to assert powers beyond

those conferred by article 13, 5 of the Oklahoma Constitution. Petitioners are asking for

more than this Courts constitutional review of 4 of HB 3399. They are asking this Court


19/29

15

to expand the power of the State Board of Education and its independence from the

Legislature to an extent never contemplated by the Oklahoma Constitution. Extreme care is

warranted in considering this aspect of this case because the proper balance of power

between the State Board of Education and the Legislature is at stake.

IV. WHAT IS THE HISTORIC ROLE OF THE LEGISLATUREWITH RESPECT TO CURRICULUM STANDARDS?

Petitioners primary argument against 4 of HB 3399 is summarized as follows:

Does HB 3399 violate art. IV, 1 of the Oklahoma Constitution by giving theLegislature excessive, controlling influence over the executive power of theBoard?

Curiously, Petitioners do not quote the actual text of article 4, 1 in their brief. It states:

The powers of the government of the State of Oklahoma shall be divided intothree separate departments: The Legislative, Executive, and Judicial; andexcept as provided in this Constitution, the Legislative, Executive, andJudicial departments of government shall be separate and distinct, and neithershall exercise the powers properly belonging to either of the others.

(Emphasis added.) As noted in the preceding section, this Court has held that [t]he

providing of an education is purely a legislative function . Robinson v. Thorpe , 1931 OK

22, 15 (emphasis added). Thus, it would seem that this point could be resolved simply by

reaffirming the long-recognized historical power of the Legislature over curriculum standards

in Oklahoma. In light of this history, Petitioners convoluted analysis under In re ODOT ,

2002 OK 74, is completely superfluous because the first ODOT factor, which asks what is

the essential nature of the power being exercised? has been answered by Robinson and the

many other cases that have recognized that education policy-making is a legislative function.

The development of curriculum standards only becomes an executive function to the extent

that the legislative power over such standards is delegated to the State Board of Education.

And, in this respect, the Legislature may give and it may take away.


20/29

16

Standards-based education was first proposed in A Nation at Risk , a study of national

education policy conducted in 1983 by President Ronald Reagans National Commission on

Excellence in Education. See http://www2.ed.gov/pubs/NatatRisk/index.html. Thus, it is no

surprise that the 1907 Oklahoma Constitution is silent on this specific aspect of education

policymaking. However, as noted in the preceding section, the Oklahoma Constitution did

give the Legislature power over textbooks and certain aspects of curriculum.

In line with the national trend in favor of standards-based education, the Legislature

adopted Oklahomas curriculum standards statute, now found at 70 Okla. Stat. 11-103.6 in

1989. See 1989 1st Extr. Sess. HB 1017, 6. While Oklahomas original curriculumstandards statute gave greater discretion to the State Board of Education than the current

version, the fifteen amendments to the statute in the last twenty-five years (including HB

3399) have resulted in steadily-increased legislative oversight. Importantly, the

constitutionality of the statute, in its multiple versions, has never been challenged until today.

In line with its status as the constitutional body vested with oversight of education, the

Legislatures authority over curriculum standards has long been acknowledged.

The standards-based education movement has coincided with greater federal

oversight of education standards as well. Beginning with President Clintons The Goals

2000: Educate America Act of 1994 and continuing through President Bushs No Child Left

Behind Act of 2001 (the current congressional reauthorization of the federal Elementary and

Secondary Education Act) to President Obamas and the federal Department of Educations

attempts to ameliorate the tough penalties of the same, the federal government has steadily

increased its reach into the curriculum standards process. All of this came to a head with the

Obama administrations offer of Race to the Top grants and flexibility waivers from


21/29

17

various provisions of the No Child Left Behind Act of 2001. Both federal programs were

conditioned on states adopting specific curriculum standards models.

In 2010, the Oklahoma Legislature adopted the Common Core State Standards for the

following stated reason:

Recognizing the potential for dramatically improving student achievement inthis state due to the opportunity available through the federal Race to the Topprogram, the Legislature finds that all of the provisions of this act arenecessary to support Oklahomas application for the second round of federalRace to the Top funding.

2010 SB 2033, 1. Section 15 of the same bill adopted the Common Core State Standards in

full. Curiously, even though this action represented the Legislature mandating an entire setof curriculum standards without giving the State Board of Education any discretion

whatsoever, no one raised constitutional concerns at the time. The allure of federal money

was strong enough to unify support for adopting the Common Core State Standards.

Oklahomas application for a federal Race to the Top grant was denied in 2010. See

http://racetotop.com/. However, with a newly-elected State Superintendent and Governor in

office, 8 it was quickly realized that the disappointment of losing out on a federal grant could

be substantially assuaged by the federal Department of Educations offer of a flexibility

waiver. These waivers, now obtained by all but about four states, exempt public education

systems from some of the No Child Left Behind Act of 2011s more draconian penalties for

low-performing schools. See http://www2.ed.gov/policy/elsec/guid/esea-flexibility/index.

html. Oklahoma quickly began preparations to apply for a federal waiver.

8 Incidentally, change of leadership of these two offices from Democratic to Republicancontrol also resulted in the passage of 2011 SB 435, which amended 70 Okla. Stat. 3-101 toprovide that members of the State Board of Education serve at the pleasure of the Governor.This bill is another example of the direct control that the Legislature exerts over the StateBoard of Education. The composition of most constitutional bodies is set by the OklahomaConstitution, but the composition of the State Board of Education is set by statute.


22/29

18

Oklahomas waiver application, which was approved by the federal department of

education in 2012, brought about all that has been contentious in Oklahoma education during

the last four years. Oklahomas highly controversial Teacher and Leader Effectiveness

evaluation system and A-F School Grading System were both adopted as part of Oklahomas

efforts to obtain a federal waiver. In addition, the waiver application required that Oklahoma

demonstrate a commitment to college- and career-ready standards. See ESEA Flexibility

Request , p. 15, available at http://ok.gov/sde/sites/ok.gov.sde/files/ESEA-FlexAmend8-

12.pdf. The waiver application listed two options for complying with this requirement:

Option A The State has adopted college- and career-ready standards in atleast reading/language arts and mathematics that are common to a significantnumber of States, consistent with part (1) of the definition of college- andcareer-ready standards. . . .

Option B The State has adopted college- and career-ready standards in atleast reading/language arts and mathematics that have been approved andcertified by a State network of institutions of higher education (IHEs),consistent with part (2) of the definition of college- and career-readystandards.

Id. To date, the only curriculum standards that comport with Option A are the Common Core

State Standards. Thus, when the Legislature determined that it wished to revoke the

Common Core State Standards, it was forced to adopt Option B or risk losing Oklahomas

federal waiver.

Option B accounts for a great deal of HB 3399s scheme for the development of new

curriculum standards, which otherwise seems more complicated than it needs to be. Indeed,

HB 3399 specifically references the federal waiver:

Upon the effective date of this act, the State Board of Education shall seekcertification from the State Regents for Higher Education that the subjectmatter standards for English Language Arts and Mathematics which were inplace prior to the revisions adopted by the Board in June 2010 are college- andcareer-ready as defined in the Federal Elementary and Secondary Education


23/29

19

Act (ESEA) Flexibility document issued by the United States Department ofEducation and referenced in Option B of Principle 1: College and Career-Ready Expectations for All Students.

2014 HB 3399, 3. 9 Option B is also why the new standards will be developed by the State

Department of Education, the State Regents for Higher Education, the State Board of Career

and Technology Education, and the Oklahoma Department of Commerce. Id. Interestingly,

Petitioners do not challenge this aspect of the Legislatures mandate with respect to the new

curriculum standards even though it clearly dilutes the alleged powers of the State Board of

Education. Rather, Petitioners only object to the Legislatures determination to exercise its

constitutional right to oversee the standards-development process.In this regard, it is highly significant, as noted in Part III above, that the 2013

amendments to the Oklahoma Administrative Procedures Act already gave the Legislature

power to approve and/or reject curriculum standards adopted by the State Board of Education

via the rulemaking process. In addition, the legislative adoption of the Common Core State

Standards represented a complete legislative preemption of curriculum standards in the

subject areas of English and math. With these two facts in mind, it becomes clear that HB

3399 actually gives the State Board of Education more power than it had before over

curriculum standards development. First, HB 3399 restores to the State Board of Education,

in conjunction with other state entities, the power to draft curriculum standards in English

and math. The State Board of Education has had no power in that area whatsoever since

9 The State Regents for Higher Education are expected to certify that the current PriorityAcademic Student Skills standards are college- and career-ready because a 2010 study bythe Thomas B. Fordham institute, a major proponent of the Common Core State Standards,rated Oklahomas English and math standards as too close to call when compared with theCommon Core State Standards. The State of State Standards and the Common Core in2010 , pp. 8, 261-266, available at http://edexcellence.net/publications/the-state-of-state-of-standards-and-the-common-core-in-2010.html.


24/29

20

2010. Second, HB 3399 creates a more collaborative approach between the Legislature and

the State Board of Education than the blunt approve or reject scheme that exists under the

current Administrative Procedures Act. See 75 Okla. Stat. 308.3. Under HB 3399, the

Legislature has a wider menu of options when reviewing new curriculum standards and the

State Board of Education has greater flexibility in how it may respond to Legislative action.

To turn, then, to the ODOT factors, on which Petitioners rely, it is immediately

apparent that the Legislatures role in curriculum standards development, as expressed in HB

3399 does not fail the ODOT test. With respect to the first factor, the essential nature of the

power being exercised over education policy is legislative, as this Court has repeatedlyemphasized. 10 With respect to the second factor, while HB 3399 does impose a certain level

of coercion on the State Board of Education, this is consistent with the historical

constitutional balance of power between the Legislature and the State Board of Education. In

addition, as outlined above, the level of coercion is substantially less than the level of

coercion that has existed since 2010. With respect to the third factor, the Legislature does

occupy a superior position to the State Board of Education in ways that are quite unique from

the Legislatures role with respect to other constitutional bodies. In short, the ODOT test

does Petitioners no favors and actually supports the system that HB 3399 puts into place.

Thus, 4 of HB 3399 should be upheld as constitutional.

10 On this point, Petitioners selective list of four differences between the current PriorityAcademic Student Skill standards and the Oklahoma Academic Standards (the neologismcoined by the State Department of Education to denote the Common Core State Standardsalong with certain other reforms) is utterly pointless. What grades to teach such topics ashandwriting or counting money, what emphasis should be placed on fiction versus othertexts, and what level of reading comprehension should be taught are not minute details ofinstruction but go to the essence of what students will be expected to learn. Any particularelement of curriculum standards is of no greater or lesser weight than any other. Thepossibility of disagreements about the best curriculum standards and how to prioritize themdoes not convert the development of curriculum standards into an executive function.


25/29

21

V. IS 4 of HB 3399 SEVERABLE?

We come now to Petitioners apparent real goal in this lawsuit: the total overthrow of

HB 3399. Not content to challenge 4s legislative oversight provision, Petitioners demand

that the entire bill be thrown out. Perhaps this is because Petitioners are bringing this lawsuit

out fear that HB 3399 will result in Oklahoma losing its federal education waiver. 11 Perhaps

this is because Petitioners, four of whom are members of the State Board of Education, really

do seek to aggrandize an unprecedented amount of power to the State Board of Education.

Regardless of these or other possible motives, there is no need to reject HB 3399 in full.

First, it is true that 3(A) of HB 3399 provides that no new standards can be adoptedwithout approval under 4s scheme. However, if the Court sees fit to overturn 4, the

Legislature will have at least two full years to identify and enact a new scheme of legislative

review that comports with the Oklahoma Constitution. This is because 3 clearly states that

the Priority Academic Student Skills standards will remain in force until August 1, 2016.

Thus, depending on this Courts decision in this case, there are two legislative sessions in

which the Legislature can amend 3s scheme before any constitutional infirmity would

become problematic. In short, 3 can be executed even if this Court overturns 4.

Similarly, 3(I) of HB 3399 presents no problem because the State Board of Education can

go ahead and revoke the Common Core State Standards and return to the Priority Academic

Student Skills standards even if 4 is overturned. It would be a huge and unwarranted

assumption to conclude that the Legislature would not have revoked the Common Core State

Standards even if the specific scheme in 4 for adopting new standards was unconstitutional.

11 POE believes these fears to be unfounded. See note 9 above. Nonetheless, Petitionersaffiant, Dr. Phyllis Hudecki, lobbied against HB 3399 partly on this basis. See http://edexcellencemedia.net/public/20140602-Impact-Analysis-Oklahoma-Final.pdf(containing Dr. Hudeckis impact analysis of HB 3399).


26/29

22

Section 8 of HB 3399 concerns testing and is even less of an issue than 3. It

follows logically that if and when new standards are developed, then new assessments must

also be developed. A successful constitutional challenge to 4 would not change this basic,

common sense fact. Even if the outcome of this litigation results in the Legislature having to

rework 4, there will still have to be new assessments once the new standards are in place.

Thus, there is no problem with 8 vis--vis the possibility of 4s demise.

Finally, while 12 of HB 3399 would technically have the effect of no Legislative

oversight of curriculum standards development if 4 is overturned, this situation would only

last very temporarily. Again, there is a two year window until August 1, 2016, for theLegislature to make any changes to 4 which may be necessitated by the outcome of this

action. It is all but certain that the Legislature would not sit back in the face of 4 being

overturned and allow the State Board of Education to proceed with unfettered authority.

Petitioners feigned solicitation for the Legislatures intent to oversee the curriculum

standards process presents no impediment to this Courts ability to uphold the remainder of

HB 3399 even if it finds 4 to be objectionable.

VI. CONCLUSION

POE hopes that the information in this amicus brief has been helpful to the Court in

deciding this matter. It is hoped that a fuller understanding of the exact contours of HB

3399, couched as they should be in the historic context of curriculum standards in

Oklahoma, will help this Court see that HB 3399 is not the radical and unprecedented

legislative overreach that Petitioners claim. Rather, as the history of the constitutional

allocation of authority between the State Board of Education and the Legislature as well as

the history of curriculum standards in Oklahoma show, HB 3399 fits well within the


27/29

23

recognized power of the Legislature to exert primacy over education policy for Oklahoma.

Finally, even if this Court determines that 4 of HB 3399 is objectionable, the remainder of

the bill can be allowed to stand without difficulty. For these reasons, POE respectfully asks

that this Court UPHOLD the constitutionality of HB 3399 in full.

Respectfully Submitted,

____________________________________Michael Furlong, OBA No. 31063Blake Sonne, OBA No. 20341PROFESSIONAL OKLAHOMA EDUCATORS

P.O. Box 667Norman, Oklahoma [email protected](405) 872-3175 telephone(405) 872-8897 facsimile


28/29

24

CERTIFICATE OF MAILING TO PARTIES

I certify that a true and correct copy of Applicants Statement of Association of ProfessionalOklahoma Educators in Support of Request to Appear as Amicus Curiae was mailed on the9th day of July, 2014, by depositing it in the U.S. Mail, postage prepaid or by electronic mail

to:

ATTORNEYS FOR PETITIONERSRobert G. McCampbell, OBA # 10390K. McKenzie Anderson, OBA # 30471FELLERS, SNIDER, BLANKENSHIP, BAILEY & TIPPENS, P.C.100 North Broadway, Suite 1700Oklahoma City, Oklahoma 73102(405) 232-0621(405) 232-9659 (fax)

STATE OF OKLAHOMAOffice of the Attorney General313 NE 21st StreetOklahoma City, Oklahoma 73105

Office of the Governor2300 North Lincoln Boulevard, Rm. 212Oklahoma City, Oklahoma 73105

PRESIDENT PRO TEMPORE OF THE OKLAHOMA SENATE2300 North Lincoln Boulevard, Rm. 422Oklahoma City, Oklahoma 73105

SPEAKER OF THE HOUSE OF REPRESENTATIVES2300 North Lincoln Boulevard, Rm. 401Oklahoma City, Oklahoma 73105

OKLAHOMA STATE DEPARTMENT OF EDUCATIONOffice of the Superintendent of Public InstructionOklahoma State Department of EducationOliver Hodge Building2500 North Lincoln BoulevardOklahoma City, Oklahoma 73105

ATTORNEYS FOR AMICUS CURIAE RESTORE OKLAHOMA PUBLIC EDUCATIONDon M. Powers, OBA # 18810G. Kay Powers OBA # 18811POWERS AT LAW, LLC1420 Bond StreetEdmond, Oklahoma 73034


29/29

ATTORNEY FOR AMICUS CURIAE THE TULSA 9.12 PROJECTJohn Paul Jordan, OBA # 22613THE JORDAN LAW FIRM1703 Professional Circle, Suite 501AYukon, Oklahoma 73099

ATTORNEY FOR AMICUS CURIAE EAGLE FORUM EDUCATION ANDLEGAL DEFENSE FUND, INC.W. Dan Nelson, OBA # 66264901 Richmond Square, Suite 103Oklahoma City, Oklahoma 73118

_________________________________Michael Furlong, OBA No. 31063

pack v. state poe amicus brief regarding constitutionality of hb3399

Documents