Standing Strong for Local Control CCOSA’s amicus curiae brief in support of an Edmond Public Schools lawsuit

By Andrea Kunkel, CCOSA General Counsel and ODSS Executive Director

Public comments on several of the new and amended Administrative Rules recently proposed by the Oklahoma State Department of Education (OSDE) have focused on whether the OSDE and State Board of Education (SBE) have the statutory authority to adopt and enforce those rules. On February 20, 2024, Edmond Public Schools filed an action against the SBE, State Superintendent Ryan Walters, and the OSDE (collectively, “Respondents”), asking the Oklahoma Supreme Court to determine whether SBE’s recently amended School Library Media Program Rules are valid and enforceable. (To avoid repetition, all references to OSDE and SBE’s proposed Administrative Rules can be found by clicking the previous link to an SBE Board meeting packet.)

The district filed the action after OSDE ordered it to remove two books from its high school libraries that OSDE’s Library Media Advisory Committee had adjudged “pornographic” or “sexualized content” under OAC 210:35-3-121.1. If the District removes the books, it faces litigation threatened by parents and students who oppose removal. If SBE upholds OSDE’s order of removal and the District does not remove the books, it faces a finding of “willful noncompliance” and downgraded accreditation status under OAC 210:35-3-126. A major part of the District’s argument to the Court is that the rules are invalid and unenforceable because they exceed the authority the legislature delegated to OSDE and SBE – an unconstitutional encroachment of the executive branch (including state agencies) into the policymaking authority of the legislature.

Besides the brief the District filed with the Court, the Oklahoma State School Boards Association (OSSBA) and CCOSA also filed amicus curiae briefs supporting the district’s position. Those briefs explain how OSDE and SBE’s general approach to rule-making erodes local board control of public school districts and how the rules contradict a specific state statute through which the legislature left decisions about which books and other materials reflect community standards for the population the library media center serves to public school districts.

In its brief, OSSBA explains the broad impact of OSDE and SBE’s rulemaking on local control. Within the general legislative framework of SBE powers and duties set out in state statute, SBE is provided with power to “[a]dopt policies and make rules for the operation of the public school system of the state.” SBE has relied on that broad and general statutory power as authority to adopt a wide variety of rules it deems appropriate for public schools, recognizing few if any limits on its authority. As OSSBA states, “This unrestrained legislative authority, when wielded by an executive agency, is an unconstitutional delegation of legislative authority as prohibited by Articles IV and V of the Oklahoma Constitution. Likewise, allowing such a broad interpretation of the statute gives the agency an unfettered ability to create rather than to facilitate policy, and subjects locally elected school boards and school districts to the political whims of the Respondents.”

CCOSA’s brief addresses the specific impact of the School Library Media Program Rules on local control. OSDE and SBE relied upon the same broad and general statutory power referenced above to authorize their adoption of the rules. But the rules contravene the legislature’s 2022-enacted statute, which provides:

As school library media center resources are finite, the library media program shall be reflective of the community standards for the population the library media center serves when acquiring an age-appropriate collection of print materials, nonprint materials, multimedia resources, equipment, and supplies adequate in quality and quantity to meet the needs of students in all areas of the school library media program.

The statute does not attempt to identify what resources are “reflective of the community standards for the population the library media center serves,” “age-appropriate,” or “adequate in quality to . . . meet the needs of students.” In explanation, the author, Rep. and Speakerdesignate Kyle Hilbert, commented in a media interview, “Yes, it’s vague, but it’s vague in such a way to allow local districts to decide what fits and doesn’t fit.”

However, the rules restrict school districts from carrying out local decisions to acquire and maintain appropriate resources. SBE added language to the rules defining and prohibiting “pornographic material” and “sexualized content” in school library media programs and a process to require the removal of items that SDE and SBE deem prohibited. Although a school district determines through its local process that a particular item it acquires is “reflective of the community standards for the population the library media center serves,” OSDE and SBE can overrule the district and require the item’s removal, with the threat of downgraded accreditation to ensure compliance. All school districts are required to adopt policy that identifies the process it will use to review and determine a library media center resource challenge. But local control is undermined when OSDE and SBE enforce the rules process.

The strength and survival of public schools depends on the willingness and ability of local parents, school personnel, board members and the community to help shape children’s educational experience. OSDE and SBE’s current approach to rulemaking erodes local control. CCOSA supports Edmond Public Schools in its efforts to address this important issue at the Oklahoma Supreme Court. Although we can only guess at the timing of the Court’s decision, the Court’s April 15 decision to retain jurisdiction of the case is a positive sign. ■