OKLAHOMA CITY — The State Board of Education and Education Secretary Ryan Walters lack the authority to make administrative rules without proper direction from the Oklahoma Legislature, a formal opinion from Attorney General Gentner Drummond said last week.
Drummond’s six-page opinion, which has the force of law until overruled by a court, came at the request of state Rep. Mark McBride, a Republican from Moore. Drummond said the content of the rules was irrelevant to the issue of whether proper authority exists to issue them.
“It is well settled that an agency may only exercise the powers expressly given by statute,” the opinion said. “An agency cannot expand those powers by its own authority.”
Drummond said state lawmakers were given policymaking authority and that he would not “allow any state agency, board or commission to usurp the Legislature’s rightful role if they have the best intentions.”
Though the opinion acknowledged that the Legislature may delegate some rulemaking authority to the SBE, relying solely on the Board’s general powers and duties is improper for rulemaking, it added that “any delegation of authority to the SBE to determine facts and enact rules must also come with prescribed legislative standards to guide the agency.”
Drummond’s opinion also notes that any rules enacted by the Board exceeding its authority are void, cannot be placed into effect and cannot be enforced by either the Oklahoma State Department of Education or the SBE.
The opinion comes just about two weeks after Walters pushed the Department of Education to adopt new rules about transgender students and pornographic materials in school libraries. On March 23, SDE approved a requirement that schools notify a student’s parents if the child changes gender identity or pronouns and endorsed a bad “pornographic” content from school libraries. Walters authored the rules, saying sexual material in schools was a pervasive threat to Oklahoma school kids and that the state’s values were under attack.
Drummond’s opinion said a reliance on the SDE’s general powers and duties would constitute either an impermissible abdication of lawmaking responsibility or an impermissible delegation of policymaking authority to the board.
“Either way, it constitutes an impermissible invasion of the proper province of the Legislature secured for it by Article IV, Section I of the Oklahoma Constitution — which is something this office will not permit,” the attorney general said.