State Supreme Court finds Common Core Repeal Constitutional

Source:  ANDREA EGER  /Tulsa World

OKLAHOMA CITY — Only a few hours after hearing oral arguments, the Oklahoma Supreme Court on Tuesday afternoon ruled a bill repealing Common Core standards constitutional.

The court’s ruling, which is available on its website, states that House Bill 3399 does not violate the Oklahoma Constitution and “having found HB 3399 constitutional, there is no need to address the issue of severability.”

The court record states that Justice Noma Gurich “concurs in part and dissents in part,” while all of the others were in total concurrence.

Robert McCampbell, attorney for the plaintiffs, reacted to the swift ruling by saying, “Although we are disappointed with the result, we of course respect the court’s decision.”

The plaintiffs had contended that HB 3399 was an “unprecedented expansion of the power of the legislative branch and interference with the executive branch.” The court disagreed.

Gov. Mary Fallin praised the court’s decision.

“This bill has now been passed with large legislative majorities, signed by the governor, and reviewed by the courts. It is now time for parents, teachers, school administrators and lawmakers to work cooperatively to implement this law,” she said in a statement.

“Working together, I know that we can design Oklahoma standards that live up to a level of excellence our parents and students expect and deserve.”

House Speaker Jeff Hickman said: “I am pleased the Supreme Court ruled in favor of the legislative body closest to the people. I look forward to the adoption of new standards for education in Oklahoma which will challenge our students and prepare them for the future.”

The court had expedited the case to limit any uncertainty for educators preparing for the next school year.

The plaintiffs — five school teachers, three parents of public school students and four members of the state Board of Education — claimed HB 3399 would have the Legislature “encroach upon the constitutional authority given to the Board of Education” for “supervision of instruction in the public schools.”

The lawsuit also claimed the bill violated the state constitution’s “principal of separation of powers” by giving the legislative branch controlling influence over the state board, which was appointed by Fallin, and, as such, is part of the executive branch.

In 2010, the Oklahoma Legislature adopted Common Core standards in math and English, making it one of 45 states to ultimately do so. The National Governors Association and the Council of Chief State School Officers led the effort to create a common set of curriculum standards to ensure consistency across the country, but the standards soon became controversial.

One of the co-authors of HB 3399, state Rep. Jason Nelson, R-Oklahoma City, said he had been confident the court would rule the legislation constitutional because those same issues raised in the lawsuit were raised by a national association of state school boards early in the spring and studied carefully by his legal counsel.

“Anything the Legislature would do would have to be signed by the governor and is subject to veto, so it’s not like the Legislature could go in with a No. 2 pencil and start making changes,” Nelson said. “If the Legislature starts to tinker with the standards in an inappropriate way, we can be checked by the public in a very direct way.”

Nelson added that the process for developing new academic standards to replace Common Core standards will involve extensive input, including higher education experts, educators and parents statewide.

“I just don’t see them coming back with a product that we have any serious issue with,” he said. “I think the process is robust and public enough to prevent that from happening.”

Gurich and Justice Yvonne Kauger interrupted McCampell’s arguments early on in the hearing with numerous questions.

Gurich asked him how he defines “supervision of instruction in public schools.”

He responded by citing previous rulings by the court in which he said it found the Legislature could not take over control or duties vested in the state Board of Education.

Kauger said authority granted to the Board of Education does not limit the power of the Legislature, adding, “That gives me real pause.”

McCampbell also said the court had previously “protected the power” of the Oklahoma State Regents for Higher Education, although he noted that their power is defined differently than the state Board of Education’s.

Gurich asked: “The board of education is mentioned in the constitution — would that not elevate it in stature? … If the board of education is in our constitution, the founders clearly thought it was important for someone with expertise to supervise instruction — most legislators are not educators.”

Kauger said, “Replete in our constitution is this theme … that the Legislature was intentionally given more power than the other branches because of territorial abuses.”

McCampbell responded, “I’m not arguing the Legislature is not the most powerful branch. I’m asking the court to keep them in their own lanes,” to which Kauger quipped, “We’ve had a lot of merging of lanes in Oklahoma.”

Justices Steven Taylor and James Winchester were absent.

Patrick Wyrick, solicitor general for the state of Oklahoma, argued that because the state Board of Education has no constitutionally granted powers, HB 3399 does not infringe upon any constitutional power vested in the board.

He noted one of the central issues in the lawsuit — the requirement that the new standards be subject to legislative review — also applied to Oklahoma’s previous standards, called Priority Academic Student Skills, which public schools are set to return to until new standards can be developed.

“This is more of a policy issue than a legal issue,” he said.

Wyrick added that the argument that HB 3399 was “unprecedented” is not supported by previous rulings of the Supreme Court.

He suggested that if there is a problem with one paragraph in one section of HB 3399, or “50 words total out of an 18,000-word bill,” then “you strike that clause — the rest of that section can stand.”

After the hearing, state Board of Education member Amy Ford said she joined the lawsuit because of her concerns that legislators would have the power to change the standards.

“It all comes down to the question of whether we are charged with developing the standards,” said Ford, a Fallin appointee from Durant. “There are hundreds and thousands of people involved in the standards process, so it is a vetted, consensus document that’s brought to us for approval. That gives me comfort, and that comfort is no longer there because 3399 can change that consensus document.

“This is not about Common Core yes or Common Core no to me. It’s about that one issue.”

Jenni White, president of Restore Oklahoma Public Education, one of the earliest grass-roots advocacy groups to form in opposition to the Common Core in Oklahoma, said the question raised by the lawsuit in her mind is whether standards should be set “by people or by bureaucracy.”

“While I understand McCampbell’s argument that the board is overseen by elected officials, it is not the same thing as representatives directly supervised by the people,” White said.

Nikki Fate of Yukon brought two of the only children inside the packed courtroom — her two young daughters, 9-year-old Chloe and 7-year-old Lacey.

“This is really important because Common Core is developmentally inappropriate. It’s cognitive abuse on our children,” Fate said. “They’re learning way too much at a fast pace. Chloe was doing division and multiplication in the third grade, and Lacey was doing fractions at the end of first grade.”

Fate said she advocated for the passage of HB 3399 in emails to lawmakers and even one to Fallin, when the governor was considering whether to sign it into law.

“I tried everything,” she said. “As parents, we all need to be aware of what our children are learning.”