OKLAHOMA CITY — An advisory opinion from the Attorney General’s Office indicates State Superintendent Ryan Walters may not have the authority to pursue controversial new state agency rules on school library books and sexual education materials.
Attorney General Gentner Drummond’s office on Monday issued an advisory opinion that says the State Board of Education, which Walters chairs, can only adopt new agency rules when directed to do so by the Oklahoma Legislature.
Drummond’s office issued the nonbinding legal opinion in response to a Feb. 22 request from Rep. Mark McBride, R-Moore, who has been critical of Walters.
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The chairman of the House Appropriations and Budget Committee on Education asked whether the state law Walters cited in making new rules for the State Department of Education is constitutional. The law says the State Board of Education shall have the power to “adopt policies and make rules” for the state’s system of public schools.
The advisory opinion from Drummond’s office says that part of the law is “an overly broad unconstitutional delegation of power to the Board.”
Any agency rule promulgated under that section of law “is invalid and may not be enforced by the State Department of Education or the Board,” the opinion states.
The opinion appears unlikely to deter Walters from asking for the rule changes that drew criticism at a recent public hearing.
In a statement, Walters spokesman Matt Langston appeared to downplay the legal opinion because it’s not binding like a formal attorney general’s opinion. He also questioned McBride’s conservative credentials, although he did not mention the lawmaker by name.
“While we did not originally receive any official opinion from the Attorney General’s Office on this matter, it is strange and odd that such a specific letter was delivered to a state representative who is having an identity crisis as a so-called Republican,” Langston said.
“Superintendent Walters is disappointed, however, in the fact that pornography and parental rights are being kicked around the political landscape by players in Oklahoma who claim to be conservatives upholding traditional values.”
The opinion comes as Walters is poised to ask the State Board of Education to approve a rule that would allow the governing body to downgrade the accreditation status of schools whose libraries contain “pornographic materials” or “sexualized content.”
He’s also seeking approval of a second rule that would allow parents to review and object to sexual education materials. That rule would also require school employees to notify parents of any information about their child’s health, social or psychological development, including gender identity information such as the pronouns the child uses at school.
In light of the opinion, State Board of Education members should reject these proposed rules, McBride said. He also said Walters needs to “stay in his lane” and leave policymaking to state lawmakers.
“It’s obvious there’s only three branches of government, not four,” McBride said. “The Department of Education is not a branch of government.”
Earlier this legislative session, McBride filed a bill to block the State Board of Education from approving new agency rules. McBride said he will abandon the bill because the attorney general’s opinion carries more weight.
The rules Walters proposed are redundant because local school districts already have policies in place related to inspecting library materials and notifying parents of sexual education instruction, McBride said.
He also urged Walters to abandon his campaign rhetoric and focus on the basics of improving education.
“We need to get back to the ABCs of education,” McBride said.
McBride said he will request a formal attorney general’s opinion on the Board of Education’s rulemaking authority.
The Attorney General’s Office said it issued the advisory opinion because it does not issue formal opinions on questions related to pending legislation.
If the State Board of Education approves the proposed agency rules, they go to the Legislature and governor for final approval.