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 OF
EDUCATION?

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

Article 13, 1, Oklahoma Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Article 13, 2, Oklahoma Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Article 13, 3, Oklahoma Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Article 13, 4, Oklahoma Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Article 13, 6, Oklahoma Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ii

Article 13, 7, Oklahoma Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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

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

Oklahoma State Question 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Oklahoma State Question 328 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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

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

Article 4, 1, Oklahoma Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

2014 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

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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; PRESIDENT
PRO TEMPORE OF THE OKLAHOMA
SENATE; SPEAKER OF THE HOUSE
OF REPRESENTATIVES; THE
OKLAHOMA STATE DEPARTMENT
OF EDUCATION,

Respondents.
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O-112974

AMICUS CURIAE BRIEF OF
ASSOCIATION 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

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 questions
without 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.

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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 reading
standards for history/social studies, reading standards for science, and writing standards for
history/social studies and science. Okla. Admin. Code 210:15-4-2.

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 Student
Skills [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 material
from the Next Generation Science Standards, which are independent of the Common Core
State Standards but were developed with a similarly national approach. The new science
standards 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 new
standards in 2014 HJR 1099. See 75 Okla. Stat. 308.3 (authorizing an omnibus joint
resolution to approve or disapprove agency rules). The measure died in the Oklahoma
Senate. 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 the
upcoming school year regardless of HB 3399s repeal of the Common Core State Standards.
See http://ok.gov/sde/oklahoma-academic-standards#OC3Science. Social Studies and
History standards were also subject to a full-scale revision that became effective during the
2013-2014 school year. See http://ok.gov/sde/oklahoma-academic-standards#OC3SocStud.

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 and
nonfiction 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 are
clean-up sections or are otherwise largely irrelevant to the issues at hand.

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 the
standards in whole or in part or disapprove the standards in whole or in part
with 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 in
whole, 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 of
the content of the standards themselves) was that adoption of the standards was tantamount to
ceding control over Oklahoma mathematics and English language arts/literacy to the
Common Core State Standards Initiative, a private body not subject to the control or
oversight of the Oklahoma Legislature or any other state governmental entity.

7

III. WHAT IS THE CONSTITUTIONAL STATUS OF THE
STATE 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 allowing
the 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 power
is 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 a
Board of Education, whose powers and duties shall be prescribed by law. The
Superintendent of Public Instruction shall be President of the Board. Until
otherwise provided by law, the Governor, Secretary of State, and Attorney
General shall be ex-officio members, and with the Superintendent, compose
said 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

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 schools
wherein 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 State
Question 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 the
Board of Regents of the University of Oklahoma and was not adopted until 1944.

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 state
may be educated is a command to the Legislature, and cannot be construed as
a restriction or limitation on its power to provide free schools for [various
categories 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 system
whereby the children of the state may receive an education. These various
school districts, which have been provided by law, are organized solely for the
public benefit. These school districts possess such authority as has been
conferred by the Legislature to be exercised within the limitations and mode
provided by the statutes. The providing of an education is purely a
legislative 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 public
school system. Article 13, section 1, Oklahoma State Constitution. The
method employed by it to discharge the burden thus imposed is largely within
its 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 and
maintenance of a system of public schools within the State. Article 13, 1 of
the 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,

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 Oklahoma
education law] that the provisions of article 2 of the act, relating to the
annexation of school districts and authorizing the exercise of power in
connection therewith upon the State Board of Education, is unconstitutional
and void.

22 It is observed that section 5 of article 13 of the Constitution of Oklahoma
vests in the Board of Education the power of supervision of instruction in the
public schools of Oklahoma. By the constitutional provision, it is provided
that these powers and duties of the Board of Education shall be prescribed by
law.

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 the
annexation of school districts, may not, by statute, be granted nor conferred
upon the Board of Education.

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

25 The true rule that state officers, boards, commissions, and departments
have such powers only as have been delegated to them by express
constitutional and statutory provisions or as may be implied from the nature of
the 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 of
legislation. And, by the same section it is provided that the specific grant of
authority contained in the Constitution, upon any subject whatever, shall not

11

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

26 It is our view that the matter of legislative conference of additional
powers upon the board, relating to the free public school system of the state,
but extending beyond the supervision of instruction, constituted a rightful
subject of legislation. The additional powers conferred upon the Board of
Education by the statute were not inconsistent with the power and authority
that had been conferred upon the board by constitutional provision, and since
therefore within contemplation of section 36, art. 5, Constitution, supra, the
prior constitutional grant of power does not exclude, by statutory provision,
the conference of additional powers upon the board, the contention is
untenable and such additional powers, legislatively conferred by article 2 of
the act, are fairly within the legislative discretion, and so, valid and
constitutional.

27 The power to determine the policy of the law is primarily legislative, and
cannot be delegated, but an examination of the provisions of House Bill No.
85 will disclose that the Legislature has prescribed the policy and fixed the
standards to be followed by the State Board of Education in performance of
the duties imposed upon it by the act. It is presumed that the standards
fixed 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

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.

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 term
public schools as it appears in section 5 of article 13 [of the Oklahoma
Constitution] to indicate that the constitutional convention, or the people when
they adopted their Constitution, intended to attach to it any other signification
than its well-known, popular one. We are, therefore, irresistibly led, by both
reason and authority, to the conclusion that the term public schools, as used
in section 5, article 13, of the Constitution of Oklahoma, does not include in
its 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 that
constitutionally-created bodies to oversee Oklahoma higher education are not subject to
legislative oversight, but legislatively-created higher education bodies are subject to
legislative oversight: The power vested in all these Boards of Regents or Boards of
Trustees is solely statutory power, unlike the situation presented by the constitutionally
created Boards of Regents. Thus, none of the power vested in the statutory boards
constitutes a restriction or limit on the Legislatures power. 26.

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 of
Education 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

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 LEGISLATURE
WITH 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 the
Legislature excessive, controlling influence over the executive power of the
Board?

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 into
three separate departments: The Legislative, Executive, and Judicial; and
except as provided in this Constitution, the Legislative, Executive, and
Judicial departments of government shall be separate and distinct, and neither
shall 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.

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 curriculum
standards 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

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 in
this state due to the opportunity available through the federal Race to the Top
program, the Legislature finds that all of the provisions of this act are
necessary to support Oklahomas application for the second round of federal
Race 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 set
of 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 Republican
control also resulted in the passage of 2011 SB 435, which amended 70 Okla. Stat. 3-101 to
provide 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 State
Board of Education. The composition of most constitutional bodies is set by the Oklahoma
Constitution, but the composition of the State Board of Education is set by statute.

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 at
least reading/language arts and mathematics that are common to a significant
number of States, consistent with part (1) of the definition of college- and
career-ready standards. . . .

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

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 seek
certification from the State Regents for Higher Education that the subject
matter standards for English Language Arts and Mathematics which were in
place prior to the revisions adopted by the Board in June 2010 are college- and
career-ready as defined in the Federal Elementary and Secondary Education

19

Act (ESEA) Flexibility document issued by the United States Department of
Education 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 Priority
Academic Student Skills standards are college- and career-ready because a 2010 study by
the 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 the
Common Core State Standards. The State of State Standards and the Common Core in
2010, pp. 8, 261-266, available at http://edexcellence.net/publications/the-state-of-state-of-
standards-and-the-common-core-in-2010.html.

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 repeatedly
emphasized.
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 Priority
Academic Student Skill standards and the Oklahoma Academic Standards (the neologism
coined by the State Department of Education to denote the Common Core State Standards
along with certain other reforms) is utterly pointless. What grades to teach such topics as
handwriting or counting money, what emphasis should be placed on fiction versus other
texts, and what level of reading comprehension should be taught are not minute details of
instruction but go to the essence of what students will be expected to learn. Any particular
element of curriculum standards is of no greater or lesser weight than any other. The
possibility of disagreements about the best curriculum standards and how to prioritize them
does not convert the development of curriculum standards into an executive function.

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 adopted
without 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, Petitioners
affiant, 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).

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 the
Legislature 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

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. 31063
Blake Sonne, OBA No. 20341
PROFESSIONAL OKLAHOMA EDUCATORS
P.O. Box 667
Norman, Oklahoma 73070
legal2@apoe.org
(405) 872-3175 telephone
(405) 872-8897 facsimile


24

CERTIFICATE OF MAILING TO PARTIES

I certify that a true and correct copy of Applicants Statement of Association of Professional
Oklahoma Educators in Support of Request to Appear as Amicus Curiae was mailed on the
9th day of July, 2014, by depositing it in the U.S. Mail, postage prepaid or by electronic mail
to:

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

STATE OF OKLAHOMA
Office of the Attorney General
313 NE 21st Street
Oklahoma City, Oklahoma 73105

Office of the Governor
2300 North Lincoln Boulevard, Rm. 212
Oklahoma City, Oklahoma 73105

PRESIDENT PRO TEMPORE OF THE OKLAHOMA SENATE
2300 North Lincoln Boulevard, Rm. 422
Oklahoma City, Oklahoma 73105

SPEAKER OF THE HOUSE OF REPRESENTATIVES
2300 North Lincoln Boulevard, Rm. 401
Oklahoma City, Oklahoma 73105

OKLAHOMA STATE DEPARTMENT OF EDUCATION
Office of the Superintendent of Public Instruction
Oklahoma State Department of Education
Oliver Hodge Building
2500 North Lincoln Boulevard
Oklahoma City, Oklahoma 73105

ATTORNEYS FOR AMICUS CURIAE RESTORE OKLAHOMA PUBLIC EDUCATION
Don M. Powers, OBA # 18810
G. Kay Powers OBA # 18811
POWERS AT LAW, LLC
1420 Bond Street
Edmond, Oklahoma 73034

25

ATTORNEY FOR AMICUS CURIAE THE TULSA 9.12 PROJECT
John Paul Jordan, OBA # 22613
THE JORDAN LAW FIRM
1703 Professional Circle, Suite 501A
Yukon, Oklahoma 73099

ATTORNEY FOR AMICUS CURIAE EAGLE FORUM EDUCATION AND
LEGAL DEFENSE FUND, INC.
W. Dan Nelson, OBA # 6626
4901 Richmond Square, Suite 103
Oklahoma City, Oklahoma 73118



_________________________________
Michael Furlong, OBA No. 31063