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Oklahoma Attorney General rules State Board of Education can't make rules without legislative direction

Oklahoma Attorney General Gentner Drummond
Oklahoma Attorney General Gentner Drummond

Oklahoma Attorney General Gentner Drummond says the State Board of Education led by State Superintendent Ryan Walters cannot make rules without direction from state lawmakers.

In a four-page formalopinion, Drummond said those rules went beyond Walters’ and the state board’s authority. The legislature must pass a law for the state board of education or individual districts to enforce them.

The opinion is binding and means rules recently passed by the state education board can’t be enforced. Those rules require teachers to 'out' their students if they use different pronouns or names, allow parents to review sex education materials in advance of their children receiving them, and penalize district accreditation statuses if they have “sexualized or pornographic content” in a school library.

In a news release, Drummond says he is not taking a stance on those rules.

“Whether I agree or disagree with any particular rule in question is irrelevant if the Board does not have the proper authority to issue those rules,” he said in the news release. “The Legislature is vested with policymaking authority. I will not allow any state agency, board or commission to usurp the Legislature’s rightful role, even if they have the best of intentions.”

Walters said in a statement from his spokesperson that he disagrees with Drummond's opinion.

“Unfortunately, I disagree with the Attorney General’s opinion," Walters said in a statement. "We must keep pornographic material out of schools.”

Earlier this week, that same spokesperson sent out a 56-page press release containing what he described as pornographic images in Oklahoma school libraries.

The opinion says the legislature can delegate rule making authority to the state board. It comes at the request of Rep. Mark McBride, R-Moore. McBride has been acritic of Walters, asking him to put his campaign rhetoric that often was critical of teachers unions and “woke” ideology in schools, to the side.

“I want to put this gentleman (Walters) in a box,” McBridesaid in February. “I hate to be that blunt, but we have got to focus on public education and not his crazy destruction of public education.”

The rules that are now moot took the following actions:

  • Require schools to give advance written notice for sex education and allow for parents to inspect and object to sex education classroom materials or any “other instruction questioning beliefs or practices in sex, morality or religion.” 
  • Say parents can provide written complaints to the State Department, and the department will notify the school and conduct an investigation. If a violation is found, the school’s accreditation status could be downgraded.
  • Would penalize districts’ accreditation status if they have library materials deemed to have sexualized or pornographic content. Districts would be required to provide a total inventory of all library materials to the state and adopt a policy for parent or guardian review of any library materials, as well as to respond to complaints of those materials.

This report was produced by the Oklahoma Public Media Exchange, a collaboration of public media organizations. Help support collaborative journalism by donating at the link at the top of this webpage.

Robby Korth grew up in Ardmore, Oklahoma and Fayetteville, Arkansas, and graduated from the University of Nebraska with a journalism degree.
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