Overreaching OSDE rules pass House committee

GOP-led committee favors rules that AG says OSDE lacks the authority to make.

May 15, 2024

The House Administrative Rules Committee on May 14 approved a slew of Oklahoma State Board of Education proposed administrative rules despite repeated attempts by the two Democratic committee members to have the rules removed from the resolution, HJR 1061.

One of the issues Representatives Melissa Provenzano and Amanda Swope raised during discussion was whether the state school board had the authority to promulgate specific rules without direction from the Legislature. “The existing statute that established the State Department of Education does contain a piece that says they will promulgate rules. That doesn’t mean carte blanche, go and create whatever you want,” Provenzano said. “We want to be very careful with the message that we’re sending to state agencies today.”

Attorney General Gentner Drummond issued an official opinion in 2023 stating that the Legislature may delegate rulemaking authority, but state statutes giving the state school board the power to supervise public education in Oklahoma does not authorize rulemaking on a specific statute or subject, and any rule promulgated relying only on the board’s general “powers and duties” granted within state law is invalid and may not be enforced by the Oklahoma State Department of Education.

Representative Anthony Moore disagreed with Provenzano, saying that every year state agencies pass rules without a similar bill also completing the legislative process. “The Department of Education …has had the rulemaking authority since they were instituted and created,” Moore said.

OSDE maintains it has broad constitutional authority to make rules. The agency is currently involved in a lawsuit against Edmond Public Schools over the constitutionality of a rule dictating who has the authority to decide which books school libraries may stock.

Provenzano and Swope offered ten separate amendments designed to remove certain rules from the resolution. The amendments all failed on an 8 – 2 party-line vote. The vote to approve HJR 1061 passed 7 – 3, with Provenzano, Swope, and Republican Representative Rande Worthen voting nay.

House Administrative Rules chair Gerrid Kendrix called debate against the resolution—questioning both the constitutionality and the merits of the rules—examples of rhetoric and fearmongering. “This is all based on fear, uncertainty, and doubt,” Kendrix said. “When we trust our group, our members, to make the right decisions for what we believe is the right thing, and don’t listen to the loudest voice in the room, we make the decision based on sound policy.”

The most controversial rule may be one that ties a district’s accreditation to high stakes standardized testing. The rule, which would be implemented this school year, states that if a district has fewer than 50 percent of all students testing at the “basic performance level or above” in state assessments for either English language arts or mathematics for the combined grades of third through eighth, and eleventh, then the district shall receive an academic deficiency. If the district does not show 5 percent improvement in subsequent years, its accreditation may be downgraded to the point where the state would have to take over control.

“If you’re looking for a roadmap for who is next in the crosshairs after Tulsa, this is it,” Provenzano said. “Losing accreditation equals all school staff lose their jobs, and families have to find new districts to attend. Losing accreditation puts local economies in crisis in rural communities.”

Another rule affects third party sexual health education providers. The rule adds “independent contractor” to the educational groups responsible for honoring parental rights in public education. OSDE’s parental rights rules already require advance written notice before any sex education instruction is given, and parents have the right to inspect classroom materials and object to education that violates their beliefs, morality, or religion. The rules also require school employees (and third-party providers, if the new rule is adopted) to disclose to parents any “material changes” regarding their child’s behavior, including gender identity changes.

Because violations are tied to accreditation, there could be a chilling effect of districts discontinuing third party sex education programming. One Oklahoma City nonprofit, Honestly, is the backbone of the Central Oklahoma Teen Pregnancy Prevention Collaboration, a countywide network of services and nonprofits. Honestly's work to provide inclusive, medically accurate, age-appropriate, comprehensive, and accessible sexual health education to youth has helped Oklahoma County lower its teen birth rate by 54 percent between 2012 and 2022. However, Oklahoma still has the fourth highest teen birth rate in the United States, and Oklahoma County has the highest number of teen births in the state.

HJR 1061 will next go before the full House for consideration.

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