Was Oklahoma’s Repeal of Common Core Unconstitutional?

by Celina Durgin
A lawsuit claims the bill that repealed Common Core earlier this year usurped Board of Education powers.

Litigants in a suit against the legislation that repealed Common Core in Oklahoma disagree over whether the state legislature has overstepped its bounds and infringed upon the state Board of Education’s power to set school standards.

Petitioners including members of the state’s Board of Education recently filed a lawsuit arguing that the repeal of Common Core is unconstitutional under Oklahoma state law, after the National Association of State Boards of Education sent a letter to the governor in May alleging similar legal concerns about the repeal bill she was about to sign.

The plaintiffs take issue with a provision in House Bill 3399 allowing the state legislature to be involved in drafting new standards to replace Common Core, a power they argue belongs to the Oklahoma state Board of Education. The bill’s proponents say its repeal is consistent with the precedent that let the Oklahoma legislature adopt Common Core standards in the first place in 2010.

Jenni White, president of Restore Oklahoma Public Education (ROPE) and the leading activist behind the state’s repeal of Common Core, believes the constitutional language does allow and even requires the legislature to review new standards. The constitution reads, “The supervision of instruction in the public schools shall be vested in a Board of Education, whose powers and duties shall be prescribed by law.”

“That’s the thing, where does the law come from?” White asks in an interview with National Review Online. The legality of the bill turns on the interpretation of the legislature’s ability to prescribe “powers and duties.” With the repeal, legislators can amend, make recommendations, or disapprove of the standards the board of education has created.

Former state attorney general Robert McCampbell, the plaintiffs’ lawyer, and petitioner Amy Anne Ford, a member of the Oklahoma BOE, say they are not concerned with Common Core as such but with the bill’s prescription for, in Campbell’s words, “excessive involvement” of the legislature.

They are not challenging the legislature’s ability to repeal Common Core, McCampbell told NRO. They believe the bill to be unconstitutional for two reasons: Legislative involvement with new standards would encroach upon the BOE’s constitutional authority and would violate the separation of powers.

State representative Jason Nelson, co-author of H.B. 3399, contends that the lawsuit is an attempt to impose Common Core, carried out by a national organization with national interests — the National Association of State Boards of Education, or NASBE.

The national group sent a letter to Oklahoma’s governor on May 27 expressing legal concerns with the legislation. That suggests “NASBE clearly had an interest in opposing the bill before it had the provisions they’re currently objecting to,” Nelson tells NRO, maintaining that the bill remains constitutional with the provisions.

NASBE’s letter was written with the help of Robert McCampbell, currently the plaintiffs’ lawyer, but the group ended its relationship with McCampbell’s firm in mid June.

Ford joined the suit after McCampbell called her and explained the complaint. Before the passage of the bill, she had been concerned with the sections regarding the process for drafting and implementing the new standards.

Under the supervision of the BOE, she told NRO, the standards are created by a coalition of educational experts. Citizens can influence the process at this level. She said that the legislature lacks the authority and the knowledge to review and possibly amend the standards the BOE develops.

Legislative involvement “makes the development of standards very political, and I don’t like that,” she said. She acknowledged that the original adoption of the new Common Core standards was never considered legislative overreach.

After Oklahoma overwhelmingly voted to repeal Common Core, White feared that Republican governor Mary Fallin, who supports the standards, would seek legal counsel to ascertain whether a lawsuit would stand up in court.

Fallin, former chairwoman of the National Governors Association, signed the bill repealing Common Core June 5. She is up for reelection in November in the red state, and holds the power to appoint BOE members.

“What angers me is that the state BOE is supposed to have the mind of the people in their hearts, not the mind of the governor,” White said. “But now they say they serve at the pleasure of the governor, not the pleasure of the people. That’s a huge problem.”

White wrote on her blog that the constitution does not restrict oversight of standards to the state school board. She also wrote that “the legislature can already vote down the rules the state board makes to accept the standards in the first place, basically negating the standards — we just did that with the National Science Standards re-named Oklahoma Academic Standards for Science.”

The attorney for ROPE, White’s organization, is preparing an amicus brief to oppose the lawsuit.

— Celina Durgin is a Franklin Center intern at National Review Online.

EDITOR’S NOTE: This article originally stated that NASBE organized the plaintiffs who filed the suit, which Jenni White told National Review Online was the case based on information she had learned about NASBE’s letter to Governor Fallin. NASBE denies that it organized the lawsuit. This article also stated that the lead plaintiff had been a member of the NASBE; the Oklahoma BOE hasn’t been a member since 2001. It has been updated throughout to reflect these corrections.