OSDE rules
House Administrative Rules Committee Chairman Gerrid Kendrix (R-Altus) laughs with Vice Chairwoman Denise Crosswhite Hader (R-Piedmont) before a meeting Monday, May 6, 2024. (Bennett Brinkman)

While the leaders of Oklahoma government gathered for public budget theater to start their week, Monday also featured state agency rules rigmarole and the filing of two education lawsuits challenging new federal Title IX requirements.

Members of the Oklahoma House Administrative Rules Committee unanimously advanced a resolution approving most pending state agency rules but disapproving others for the Oklahoma Tax Commission, Department of Mental Health and Substance Abuse Services and State Fire Marshal Office.

But the committee declined to take action either way on a slate of State Department of Education rules — for now. Although the committee chose not to address a dozen filed amendments that would have rejected various OSDE rules, the resolution was amended to exclude those rules from approval at this time.

The resolution, HJR 1059, now heads to the House floor for a vote from the full chamber. Committee Chairman Gerrid Kendrix (R-Altus) said he felt the questions surrounding OSDE’s proposed rules warranted putting them in their own resolution separate from the one advanced Monday.

“We just decided as a caucus that we’re going to split that off and run that as two separate resolutions, and we’ll deal with that other one in the near future,” Kendrix said. “I hope to have that together very soon.”

Although state agencies are directed to create their own rules based on legislation, final approval of those rules is left to either the Legislature or the governor.

To that end, House and Senate members typically draft and vote on a joint resolution approving all agency rules except those with which they do not agree. Any rule not explicitly approved or disapproved goes to the governor for a final decision.

“I’m sorry, we’re not through yet,” Kendrix told committee members Monday. “You’re going to have to hang on for just a little bit more.”

Kendrix said the resolution that advanced Monday will not be brought to the House floor until the OSDE resolution is also advanced by the committee.

“It is the intention to bring those two [resolutions] to the floor at the same time,” Kendrix said at the end of the meeting.

OSDE rules deal with multitude of issues

Supporters and protesters of State Superintendent of Public Instruction Ryan Walters line up outside of the State Department of Education before a meeting on Thursday, Sept. 28, 2023. (Bennett Brinkman)

Legislators have expressed numerous concerns about the OSDE rules, both regarding the agency’s authority to promulgate them and the rules’ impact.

“We’re at the risk of creating law through the rule-making process, and that’s not the legislative intent,” Rep. Melissa Provenzano (D-Tulsa) said April 22. “It is us directing the education department to create rules, not the other way around. And you can’t go hunting to change things just because you don’t like it. You come to us and ask first.”

The proposed education rules have been controversial, touching on everything from major accreditation reforms to teacher conduct. One rule concerning students’ gender identities on school records has already led to a lawsuit.

If ultimately approved by the Legislature or the governor, the multitude of pending OSDE rules would:

  • Give districts an academic accreditation deficiency if their students do not meet certain academic standards;
  • Ban DEI (diversity, equity and inclusion) programs;
  • Require districts to adopt voluntary prayer and minute-of-silence policies;
  • Adopt “foundational values” for the Oklahoma public education system that include acknowledgement of a “creator” and declarations such as “truth, goodness and beauty are objective moral virtues” and “good and evil are real and universal rather than relativistic concepts;
  • Require districts to comply with the School District Transparency Act;
  • Cause a district to receive a “health and safety” accreditation deficiency if it “maintains active employment” of a teacher while they are under a certification revocation investigation and that teacher’s certification is later revoked;
  • Add an accreditation status of “accredited with distinction” for districts that receive the recommendation after undergoing a “distinction audit;”
  • Allow districts to fire teachers who engage in sexual acts or “acts that appeal to the prurient interest in sex” in front of minors;
  • Remove the Oklahoma State School Board Association from the list of automatically approved organizations that can provide training to school board members;
  • Update the due process requirements for certificate revocation proceedings to add that respondents have 21 days to contest revocation applications or their lack of a response will be deemed an admission of guilt;
  • Add a “civics seal” to the list of possible student academic recognitions;
  • Add the term “independent contractor” to the parental rights code;
  • Make changes to statewide testing and student remediations based on that testing;
  • Make changes to district accounting rules; and
  • Eliminate a prohibition on school board members from interfering in administrative functions of school districts.

Meanwhile, as advanced Monday, HJR 1059 proposes rejecting rules from six agencies:

  • The Oklahoma Tax Commission:
    • OAC 710: 10-17-1, regarding railroad, air carrier and public service corporation tax filing;
    • OAC 710: 1-5-112
      • Subparagraph (2) of paragraph (b), regarding taxpayer delinquencies;
  • Oklahoma Water Resources Board
    • OAC 785: 25-9-1
      • Subparagraph (1) of paragraph (g), regarding an accidental striking of language requiring engineering inspection reports of dams;
  • Oklahoma State Fire Marshal Commission, the set of rules below would create new fire extinguisher licensing categories:
    • OAC 265: 50-1-2
    • OAC 265: 50-3-1
    • OAC 265: 50-3-2
    • OAC 265: 50-3-3
    • OAC 265: 50-3-4
    • OAC 265: 50-3-4.1
    • OAC 265: 50-3-5
    • OAC 265: 50-5-2
    • OAC 265: 50-5-2.1
  • Office of Management and Enterprise Services
    • OAC 260: 60-3-3
      • Paragraph (e), which would allow a $25/hour staffing fee charged when reserving State Capitol space;
    • OAC 260: 60-3-12, which was duplicative language;
  • Department of Mental Health and Substance Abuse Services
    • OAC 450: 17-1-6, which would restrict community mental health centers to designated service areas; and
  • State Board of Examiners of Psychologists
    • OAC 575: 1-1-3, which would define methods by which the board could handle licensee complaints informally

Walters, Drummond lawsuits challenges federal government

Also on Monday, State Superintendent of Public Instruction Ryan Walters and Attorney General Drummond each announced separate lawsuits Monday against the U.S. Department of Education regarding new Title IX rules released last month.

“This rewriting — rooted in radical gender theory that ignores biological reality — has set back the cause of civil rights for women by generations,” Walters said in a press release. “I will do everything possible to protect the essential and fundamental right of women and girls to have safe spaces of their own to compete, change clothes and use the bathroom.”

The new federal Title IX rules strengthen protections for sexual harassment and assault victims and for members of the LGBTQ community. They also strengthen protections against discrimination from LGBTQ+ individuals that had largely been dismantled under the administration of former President Donald Trump.

The lawsuit did not immediately appear on the online federal court filing system, but a department spokesman provided an unsigned and unattributed copy of the petition to NonDoc. The department filed the suit in U.S. District Court for the Western District of Oklahoma.

“A violation now occurs under Title IX when a transgender student is denied access to a bathroom or locker room of the opposite biological sex. (…) Such access clearly violates the rights of other non-transgender student and violates established law,” the petition states. “Another obvious result of the final rule and its enforcement is that students, faculty, and staff are subject (to) onerous, unjustified investigations if they fail to use a transgender student’s preferred pronouns.”

Walters told local district superintendents not to comply with the new rules last month.

Meanwhile, Drummond also announced his own lawsuit challenging the new Title IX rules Monday in the same federal district court.

According to his press release, Drummond’s petition makes many of the same arguments.

“Students of both sexes will experience violations of their bodily privacy by students of a different sex,” wrote lawyers in Drummond’s office. “Indeed, the final rule also ignores psychological and safety concerns. For instance, a recent study points out that ‘limited research has explored girls’ experiences of competing on boys’ sports teams,’ noting unique challenges to female athletes. (…) Female athletes describe ‘having to navigate tensions and problematic assumptions of girls’ inferiority in sport.’ Meanwhile, research shows that female athletes are more willing to participate in single-sex athletics and less likely to feel self-conscious in single-sex athletics.”