Thursday, June 26, 2014

Updated: Lawsuit filed challenging Common Core repeal, Nelson responds

(Updated June 26, 2014 at 9:27 a.m.**) Rep. Jason Nelson, R-Oklahoma City, a coauthor of House Bill 3399, issued the following statement regarding a lawsuit filed Wednesday challenging the constitutionality of HB3399, the repeal of the Common Core State Standards from Oklahoma law. Attorney Robert McCampbell filed the lawsuit on behalf of ten plaintiffs, including four members of the State Board of Education. The plaintiffs are challenging provisions found in Section 4 of HB3399 that establish an alternative process for legislative review of new academic standards. The plaintiffs’ challenge is related to Section 4 of HB 3399 that gives the Legislature the ability to review and approve, disapprove, disapprove in whole or in part, amend or return to the Board with instructions all new standards created by the State Board of Education.

“Common Core will be reinstated if this lawsuit is successfulThis would result in even greater logistical challenges for schools that need certainty now -- the next school year begins in two months. A better course of action would have been for the plaintiffs to work with the Legislature next session to amend the provisions of Section 4 to address their concerns. It's very unlikely that new standards would be ready by next session, and certainly not before then, so Section 4 would likely not come into play until the 2016 session leaving more than enough time to address any legitimate concerns.

"The language in Section 4 was requested by grassroots opponents of Common Core because Oklahoma's Board of Education is not an elected body. 

“This lawsuit is part of an effort by an out of state, national organization with a history of promoting Common Core. The same attorney who filed the lawsuit wrote a letter in May on behalf of the National Association of State School Boards raising these same issues. Everyone needs to know that this is really an effort instigated by a national group coming into the state to stir up a legal challenge to our efforts to repeal Common Core. I was made aware of this group’s opposition to House Bill 3399 and these same constitutional issues earlier in session during a meeting with the Cooperative Council for Oklahoma School Administrators (CCOSA) and the Oklahoma State School Boards Associaton (OSSBA) when they provided a letter from NASSB.** Every effort was made to ensure the legislation was constitutional. Staff attorneys and others reviewed the group’s concerns and, based on those reviews, I don’t believe the challenge has any merit.

“No one raised these constitutional objections or filed a lawsuit when the Legislature directed the State Board to adopt a very specific set of standards back in 2010 called Common Core that did everything that the plaintiffs now claim is unconstitutional. The Oklahoma Constitution, Article 13, Section 5, clearly states that the powers and duties of the State Board of Education are subject to provisions of law passed by the Legislature. HB3399 merely modifies those provisions of law related to legislative review of academic standards. The State Board will still develop the new standards. I find it strange the plaintiffs are not challenging the part of the law that requires the State Department of Education, the Department of Commerce, the Regents for Higher Education and the CareerTech Board to be a part of the process of developing the new standards. The same argument should apply to this provision as well.

“Section 4 is nothing more than a rule-making process for administrative rules. The State's academic standards are considered administrative rules that, when approved, have the force and effect of law. I believe it is constitutionally appropriate for the Legislature to have this level of review of something that will have the force and effect of law and will affect hundreds of thousands of children.

“The argument that it is unconstitutional to grant an agency in another branch of government authority and then retain the power to reject or amend the resulting product is not unique to Section 4 of HB 3399. For example, Section 3.2 of Title 20 of the Oklahoma Statutes created the Board on Judicial Compensation which sets the salaries for justices and judges. The section grants the Legislature the authority to reject or amend the salaries established by the Board. The Legislature did amend the Board’s action in HJR 1096 signed by the Governor on June 14 of this year.”

Here is a link to a scanned copy of the lawsuit and talking points:

**Updated June 26, 2014 at 9:27 a.m. to include a link to a March 2014 letter from the National Association of State School Boards opposing HB3399:

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