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Common-Core Repeal Bill Faces a Potential Constitutional Problem

Oklahoma will repeal its adoption of the Common Core State Standards and develop new English/language arts and math standards if Gov. Mary Fallin (R) signs a bill sent to her by the state legislature. Aside from the obvious political controversies swirling around that decision, Fallin has another to consider: a national organization's contention that the legislation probably violates the Oklahoma Constitution

The May 27 letter concerning Oklahoma House Bill 3399 is from a lawyer representing the National Association of State Boards of Education, an Arlington, Va.-based group. The Oklahoma-based law firm, Fellers Snider, doesn't argue that the state legislature can't pull the state out of the common core. Rather, attorney Robert McCampbell says the real problem is the part of the bill that empowers the state legislature to approve or disapprove of the new standards that are to be developed by the state board if the bill becomes law. He makes two main arguments to support his point.

• First, he says that the legislation improperly grants the legislature power that is reserved for the state board of education in the Oklahoma Constitution. Citing case law in the state, McCampbell says that by allowing legislators final say on the standards, the bill would improperly diminish the state board's authority over the "supervision of instruction in the public schools," as the constitution states.

• Second, he says that the bill violates the separation of powers by allowing the legislature to intrude on functions of the executive branch (the state school board is appointed by the governor, although the state school superintendent, Janet Barresi, is independently elected). McCampbell against cites legal precedent in Oklahoma that the legislature "cannot perform the duties of the executive department."

Kristen Amundson, the executive director of NASBE, said in an interview that while legislatures have a great deal of power, when it comes to altering the constitution (which creates the state school board and its powers) through this kind of legislation, "You don't get to do that."

Given the membership of NASBE, it's not surprising that the organization is wary of any attempt to reduce the authority of state boards. As it happens, in light of political controversy surrounding the common core, there are bills in several states seeking to diminish the power state school boards now have over content standards. In Ohio, for example, lawmakers are mulling legislation that would prohibit the Ohio school board from collaborating with other states in the development of new social studies and science standards (the common core was developed through multi-state cooperation). 

South Carolina is also close to repealing its adoption of the common core through House Bill 3893, and that legislation also prevents changes to standards from being implemented unless those changes get approval through a joint resolution from the state legislature (as well from the separate Education Oversight Committee). But in 2010, the state school board had final say when it adopted the common core.

Amundson said that like Oklahoma, South Carolina's state board is constitutionally created, although an additional issue in Oklahoma is that the members of the state board serve at the pleasure of the governor. 

In Missouri, meanwhile, a bill to undo the state's adoption of the common core that's been sent to Gov. Jay Nixon (D) works a little differently when it comes to state lawmakers' involvement in new standards. The bill creates "work groups" that will help develop new standards to replace the common core. State legislators are given the power to appoint some of the members of those work groups. Through a new procedure, the state board will also be allowed to receive the "advice and counsel" of the state legislature when considering and adopting new standards, among other groups. 

Read the full letter on behalf of NASBE to Fallin below:

  2014 05 27 Ltr to Gov Fallin Re HB 3399 by Andrew Ujifusa

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