Oklahoma Board of Education operating as activists, Senate lawmaker says

OKLAHOMA CITY – The Senate Administrative Rules Committee directed questions at an Oklahoma State Department of Education representative Monday morning, but several members seemed frustrated by the responses given.

The committee discussed 27 rules at the meeting, but 20 pertaining to the State Department of Education dominated the dialogue. No rules were voted on, and discussion was limited to one question and a follow-up for each item.

Rules can be approved or rejected by the Legislature. A House committee will also meet to vote on rules before a joint resolution goes through both chambers. If the Legislature does not act, the governor can approve or reject rules.

While a number of questions were raised, multiple Senate committee members felt their inquiries were left unanswered Monday.

State Sen. Michael Brooks, D-Oklahoma City, voiced his opposition to most of the agency’s proposed rules. First, he pointed to the Attorney General’s April 4 opinion, stating that the current Board of Education is limited in how it can promulgate rules, and there is no explicit authorization for that. He said the first rule discussed, which deals with the declaration of foundational values, could be a violation of the establishment clause of the U.S. Constitution.

Lindsey McSparrin, government relations associate for OSDE, said the foundational values are intended to be an interpretive guide for the other rules. As for the agency’s authority, McSparrin said the attorney general’s opinion cites 104(A)(1), and all of their rules have additional authority attached to them. Regarding the rule about values and several others discussed Monday, she said it’s permissible to amend those that have been previously passed.

McSparrin said she needed to consult the department to give definite answers to one of Brooks’ questions about the Oklahoma School Testing Program.

Brooks said the proposed rule would modify remediation opportunities for students, and as a result, there would be additional requirements placed on the districts, but there hasn’t been additional funding or any other mechanisms to achieve the mandates. He asked if that was correct, and McSparrin said she could provide an answer after she received clarification.

State Sen. Micheal Bergstrom, R-Adair, asked McSparrin if she would be willing to prepare a document that could be distributed to the committee, dealing with any issues raised during Monday’s discussion. McSparrin said she intended to.

OSDE’s interim general counsel was not present at the meeting.

During discussion on rule 210:25-1-2 that deals with equal protection, state Sen. Mary Boren, D-Norman, said she had a question, but the OSDE representative was “not qualified to answer it.”

Brooks and McSparrin appeared to disagree about the correct interpretation of the Attorney General’s opinion. Brooks said the department can’t make rules without a change in state statute. McSparrin said 83 rules under a previous administration did not come expressly from a change in statute.

One of the last rules, 210:35-3-251, deals with prayer in schools. Boren said the rule states that every public school district shall adopt the policy that permits students and teachers to participate in voluntary prayer, but it does not clarify that student-led religious activities are constitutionally protected.

“But school-led, teacher-led with student participation is not constitutionally protected,” Boren said.

According to rule language, failure to adopt the policy shall result in accreditation deficiency. Boren said kids in school have every opportunity to pray, including See You At The Pole and Fellowship of Christian Athletes gatherings.

“We don’t have a religious problem with students and this creates a legal quagmire for districts and that’s why I recommend this rule be rejected,” Boren said.

Following the meeting, Brooks said he was trying to point out the overreach from the State Board of Education, and he wished the agency would have been more prepared.

“I feel bad for the person that they sent to have to run this gauntlet of questions, especially the fact that, currently as I understand it, there’s not an attorney working full time at the State Board of Education,” Brooks said. “With some of these highly technical issues having to do with administrative law, to be able to have a legal expert to be able to come in and answer those questions, I think would have been important.”

Brooks said the board of education leadership are “activists” that are trying to “step over the line.”

Superintendent Ryan Walters released a statement after the meeting, claiming that Democrats took aim at the Oklahoma Constitution and a well-established precedent.

“Democrats will stop at nothing to try to regain control of our kids’ education, and on behalf of Oklahoma students, our families in Oklahoma will never give in to their demands,” Walters’ statement reads.