Can the Oklahoma State Board of Education make administrative rules just by citing its general 'powers and duties' statute, or does it need a specific statutory authorization for each rule?

Plain-English summary

Representative McBride asked two questions about the State Board of Education's rulemaking authority:

1. Does the Board violate the separation of powers when it makes rules without specific statutory authorization?
2. Is § 3-104 (the general "powers and duties" statute) an unconstitutionally broad delegation of legislative power to the executive branch?

The Attorney General said the Board does have rulemaking authority, but only when the Legislature has specifically delegated it for a particular subject. The general "powers and duties" listed in § 3-104, including the catchall power to "adopt policies and make rules for the operation of the public school system," is too broad to support specific rulemaking on its own. Any Board rule that cites only § 3-104 as its authority is invalid and unenforceable.

The opinion does not strike down § 3-104 itself. Rather, the AG concludes that § 3-104 is constitutional only because it is read narrowly. If a rule treats § 3-104 as the source of substantive policymaking power, that application of the statute violates the non-delegation doctrine. The Board must instead anchor each rule in a specific Legislature-passed rulemaking authority elsewhere in Title 70.

This means: when a school district, parent, or interest group is reviewing a State Board rule, the first question is, "What specific statute did the Board cite as authority?" If the only citation is § 3-104, the rule is unenforceable.

What this means for you

If you are a school district administrator or school attorney

Audit the rules the State Board has promulgated, especially recent ones. For each rule:

1. Identify the statutory authority cited in the rulemaking record (the notice of rulemaking intent and the rule itself).
2. If the only authority is 70 O.S. § 3-104 or § 3-104(A)(1), the rule is invalid under this opinion and the Department cannot enforce it.
3. If the rule cites a more specific statute (for example, § 24-157, § 1-125, § 1210.162), the rule may be valid; check whether that specific statute actually authorizes the rulemaking the Board did.

If your district is subject to a sanction or accreditation action based on a rule that lacks specific statutory authority, this opinion is a defense.

If you are at the State Department of Education

Pause any rulemaking that relies on § 3-104 alone. Either:

• Identify a specific statutory hook elsewhere in Title 70 that authorizes the rule, or
• Ask the Legislature for specific rulemaking authority for the policy you want to implement.

The opinion is binding on the Department under State ex rel. York v. Turpen because it does not declare a statute unconstitutional, only that any rule made on the bare authority of § 3-104 is invalid. Continuing to enforce such rules invites litigation.

If you are a legislator

If you want the State Board to be able to regulate a specific subject (say, school start times, library books, athletic eligibility), you need to add a specific rulemaking grant in Title 70 that names the subject and provides standards. The opinion stresses that the Legislature must "establish its policies and set out definite standards" before the Board can fill in the details.

A useful template is § 3-104.3 and § 3-104.4 (accreditation), which were originally part of § 3-104 but were moved out and given specific substantive standards. Those sections satisfy the non-delegation requirements; § 3-104(A)(1) by itself does not.

If you are a parent or community member challenging a school rule

The opinion gives you a quick test: ask the Board what statute authorizes its rule. If the answer is just § 3-104, you have a clean argument that the rule is unenforceable. You can raise this in administrative proceedings, in petitions for declaratory judgment, or in defending against district enforcement.

If you advise advocacy groups

This opinion changes the landscape for litigation against State Board rules. Many existing rules likely cite § 3-104 alone or with insufficient specific anchors. A wave of challenges is foreseeable. Track which rules have specific anchors and which do not.

Common questions

Q: Does this opinion strike down § 3-104?
A: No. The opinion expressly holds that § 3-104 itself does not violate the non-delegation doctrine. What it strikes down is the use of § 3-104 alone as the basis for any specific rulemaking. The provision survives as a general grant of authority to do things the Legislature has separately authorized.

Q: What if the Board has been enforcing a § 3-104-only rule for years?
A: Length of use does not cure the defect. Under Southwestern Bell, a regulation in excess of statutory authority is void and cannot be raised above the statute even if a court has not yet declared it invalid.

Q: Are accreditation standards still valid?
A: Yes, because the standards live in §§ 3-104.3 and 3-104.4, which have specific substantive standards. The Western Heights decision (2022 OK 79) recognized the Board's accreditation rulemaking authority precisely because §§ 3-104.3 and 3-104.4 supply the missing legislative direction.

Q: What about rules on bathrooms, transportation, and child-abuse reporting?
A: Those have specific statutory anchors (§§ 1-125, 9-101 to 9-119, 1210.162). The opinion lists them as examples of properly authorized rulemaking topics.

Q: What about school district accreditation enforcement?
A: Accreditation is on solid footing because the standards are in §§ 3-104.3 and 3-104.4. But a specific accreditation rule that goes beyond what those sections authorize may still be invalid; the test is whether the rule fits within a specific legislative grant.

Q: Is this opinion binding on the State Board?
A: Yes. AG opinions are binding on state officials except where they declare a statute unconstitutional (in which case they are advisory). This opinion concludes only that rules made under § 3-104 alone are invalid, which is binding under State ex rel. York v. Turpen.

Q: Can the Board cure a § 3-104-only rule by re-promulgating it under a different statute?
A: Only if such a statute exists and authorizes the substance of the rule. The Board cannot cite a statute that does not actually delegate the rulemaking power.

Q: What about implied authority?
A: Marley v. Cannon allows agencies to exercise powers "necessary for the due and efficient exercise of the powers expressly granted, or such as may be fairly implied from the statute granting the express powers." But implied authority must flow from a specific express grant, not from a general powers-and-duties section.

Background and statutory framework

Article XIII, § 5 of the Oklahoma Constitution establishes the State Board of Education and provides that its powers and duties shall be prescribed by law. Article V, § 1 vests the lawmaking power in the Legislature; Article IV, § 1 separates the three branches and forbids one branch from exercising the powers of another.

In 1949, the Legislature passed the Oklahoma School Code (Title 70), which set out the Board's powers in § 3-104. That section is broad: the Board can adopt policies, make rules, govern accreditation, oversee health and safety, supervise transportation, and perform "all duties necessary to the administration of the public school system." Layered on top, the Legislature has also passed many specific delegations elsewhere in Title 70 (accreditation, restrooms, transportation safety, child-abuse reporting, course-content prohibitions).

The non-delegation doctrine sets the constitutional ceiling on how broadly the Legislature can delegate. Estep (1982) struck down the Oklahoma Campaign Finance Act for giving the Campaign Commission unfettered rulemaking discretion. Oklahoma City v. Department of Labor (1995) struck down a wage-setting statute that delegated to the federal Department of Labor with no Oklahoma standards. In re Initiative Petition No. 366 (2002) struck down a delegation to the State Board of Education and the State Regents to "promote the following principles" because the statute provided no principles.

The AG reads § 3-104(A)(1) (the "adopt policies and make rules for the operation of the public school system" clause) as having the same defect: it provides no standards, no policies, no guideposts. Standing alone, that clause would let the Board substitute its judgment for the Legislature's on any subject affecting public schools. That is the impermissible delegation the courts have rejected.

The escape hatch is to read § 3-104 narrowly: it allows rulemaking only for topics where the Legislature has separately authorized rulemaking with appropriate standards. That reading saves the statute and aligns the Board's authority with separation-of-powers principles.

The opinion explicitly aligns with the AG's prior 2020 OK AG 13, which held that the Board's general powers and duties were insufficient on their own to authorize a specific rule (in that case, related to the Henry Program).

Citations and references

Constitution and statutes:
- Okla. Const. art. IV, § 1
- Okla. Const. art. V, § 1
- Okla. Const. art. XIII, § 5
- 70 O.S. § 3-104 (State Board of Education powers and duties)
- 75 O.S. § 250 et seq. (Administrative Procedures Act)

Cases:
- Western Heights Indep. Sch. Dist. v. State, 2022 OK 79, 518 P.3d 531 (Board's rulemaking authority for accreditation rests on §§ 3-104, 3-104.3, 3-104.4 read together)
- Democratic Party v. Estep, 1982 OK 106, 652 P.2d 271 (Campaign Finance Act violated non-delegation doctrine)
- Oklahoma City v. State ex rel. Dep't of Labor, 1995 OK 107, 918 P.2d 26 (improper delegation to federal agency)
- In re Initiative Petition No. 366, 2002 OK 21, 46 P.3d 123 (delegation must include standards)
- State ex rel. York v. Turpen, 1984 OK 26, 681 P.2d 763 (AG opinions binding except where they declare a statute unconstitutional)
- Marley v. Cannon, 1980 OK 147, 618 P.2d 401 (agency powers limited to those expressly given or fairly implied)
- Southwestern Bell Tel. Co. v. Oklahoma Corp. Comm'n, 1994 OK 142, 897 P.2d 1116 (rules in excess of authority cannot be enforced)

Source

• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2023/ag-opinion-2023-3.html
• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2023/ag_opinion_2023-3-2.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

GENTNER DRUMMOND
ATTORNEY GENERAL

ATTORNEY GENERAL OPINION
2023-3

The Honorable Mark McBride
Oklahoma House of Representatives, District 53
2300 N. Lincoln Boulevard, Room 452.1
Oklahoma City, OK 73105

April 4, 2023

Dear Representative McBride:

This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:

1. Does power vested in the State Board of Education ("Board") to promulgate administrative rules absent specific statutory authorization violate article 5, section 1 of the Oklahoma Constitution which vests the legislative power of the State in the Legislature?

2. Is the language in section 3-104 of title 70 of the Oklahoma Statutes, authorizing the Board to adopt policies and make rules for the operation of public schools in the State, an unconstitutional overly broad delegation of legislative power to the executive branch of government?

This office initially responded to your request on March 20, 2023, through a letter from this office's General Counsel. Because you have followed-up the March 20 letter with a request for a formal opinion and there is no longer pending legislation on the topics in the questions presented, this formal opinion is provided pursuant to the duty in 74 O.S.2021, § 18b(A)(5).

I. BACKGROUND

Article I, section 5 of the Oklahoma Constitution obligates the Legislature to provide for the establishment and maintenance of a system of free public schools. Further, the Constitution establishes the Board and provides that its powers and duties shall be prescribed by law. OKLA. CONST. art. XIII, § 5. In 1949, the Legislature enacted the Oklahoma School Code (the "Code") to fulfill its constitutional obligation to establish and maintain the public schools and to set forth the powers and duties of the Board. Oklahoma Farm Bureau v. State Bd. of Educ., 1968 OK 98, ¶ 3, 444 P.2d 182, 184; 70 O.S.2021, § 1-102. The Code sets forth the Board's general powers and authority at section 3-104 of title 70 of the Oklahoma Statutes. Relevant to this Opinion, the State Board is authorized in section 3-104 to:

1. Adopt policies and make rules for the operation of the public school system of the state;
2. Promulgate rules governing the classification, inspection, supervision and accrediting of the public schools;
3. Have authority to provide for the health and safety of school children and school personnel while under the jurisdiction of school authorities;
4. Provide for the supervision of the transportation of pupils; and,
5. Perform all duties necessary to the administration of the public school system in Oklahoma as specified in the Oklahoma School Code.

In other provisions of the Code, the Legislature has established policy through its lawmaking powers and then required the Board to promulgate rules to implement those specific acts. In light of the Legislature's express statutory delegations of authority to the Board on specific subjects, this opinion addresses whether the Legislature has duly authorized the Board, pursuant to section 3-104 of title 70, to impose particular requirements on schools through rulemaking. In other words, the inquiry centers on whether such a broad grant of power can be justified under the Oklahoma Constitution and the Administrative Procedures Act (the "APA"). For the reasons set forth below, the broad statutory provision in section 3-104 does not expressly grant the Board with sweeping authority to promulgate specific rules. Further, while section 3-104 does not violate the non-delegation doctrine, any rule promulgated solely pursuant to that section is invalid and may not be enforced.

II. DISCUSSION

A. The Legislature may delegate rulemaking authority to the Board, but section 3-104(A)(1) does not authorize rulemaking on a specific statute or subject.

Article V, section 1, of the Oklahoma Constitution, expressly identifies the Legislature as the lawmaking authority of the State. Then, pursuant to article V, section 36, the authority of the Legislature extends to all rightful subjects of legislation, and specific grants of authority in the Constitution do not work as restrictions upon the legislative power. While the authority to enact laws and establish policy is the sole province of the Legislature, the Legislature may delegate some rulemaking authority to executive branch agencies to implement statutorily mandated policies.

Generally, an agency may only exercise the powers "expressly given by statute," as well as those "necessary for the due and efficient exercise of the powers expressly granted, or such as may be fairly implied from the statute granting the express powers." Marley v. Cannon, 1980 OK 147, ¶ 10, 618 P.2d 401, 405. An agency "cannot expand those powers by its own authority." Thus, "[a]n administrative agency may not under the guise of its rule making power exceed the scope of its authority and act contrary to the statute which is the source of its authority. Its authority to make rules for its various procedures does not include authority to make rules which extend their powers beyond those granted by statutes." Adams v. Professional Pracs. Comm'n, 1974 OK 88, ¶ 11, 524 P.2d 932, 934.

In 2020, the Attorney General determined that the general powers and duties in section 3-104 were insufficient, solely, to confer statutory authority for rulemaking authority. 2020 OK AG 13. As a result, while the Board has general rulemaking authority under section 3-104, this provision standing alone does not confer the authority to make rules on any specific statutes or subject matter. Rather, the Board must identify a specific grant of authority from the Legislature, which is more precise than the Board's general powers and duties in section 3-104. Otherwise, the Board would invade the constitutionally granted purview of the Legislature and offend article IV, section 1 of the Oklahoma Constitution.

Accordingly, relying on the office's conclusion reached in the Attorney General Opinion 2020-13 and the foregoing authorities, any administrative rule promulgated with section 3-104 as the sole authority for the rulemaking action is invalid. It follows then that regulations promulgated in excess of statutory authority are void, cannot be placed into effect, and cannot be enforced.

B. Similarly, any rule that is promulgated with section 3-104 as the sole authority for the rulemaking is invalid as it renders that section an unconstitutional delegation to an executive branch agency.

The non-delegation doctrine arises from the Oklahoma Constitution. The State Board of Education is an executive branch entity. Article V, section 1 vests "the state's policy-making power... exclusively in the Legislature." Article IV, section 1 creates our State's three branches and commands that they be "separate and distinct."

The Oklahoma Supreme Court has repeatedly scrutinized state law to determine whether the Legislature has performed its assigned duties in establishing state law and policy. After all, the Legislature may not abdicate its responsibility to resolve fundamental policymaking by delegating that function to others or by failing to provide adequate directions for the implementation of its declared policy. Rather, the Legislature must "establish its policies and set out definite standards for the exercise of any agency's rulemaking power." Estep, 1982 OK 106, ¶ 16.

Presently, the delegation to the Board to "adopt policies and make rules for the operation of public schools" is likely constitutionally infirm. Without more by way of standards and guidelines, it leaves important determinations to the unrestricted and standardless discretion of bureaucrats. Alone, the language in section 3-104(A)(1) fails to set forth any standards or guidelines for the Board to follow and lacks any safeguards to limit political opportunism.

Clearly, the Legislature may delegate authority to the State Board to determine facts and enact rules within prescribed legislative standards. The instances of doing so are numerous within title 70. However, nothing within the confines of section 3-104(A)(1), by itself, sets forth the requisite prescribed legislative standards. As a result, a construction in favor of the agency constitutes either an impermissible abdication of lawmaking responsibility or an impermissible delegation of policymaking authority to the Board.

It is, therefore, the official Opinion of the Attorney General that:

1. The Legislature may delegate rulemaking authority to the Board, but section 3-104(A)(1) does not authorize rulemaking on a specific statute or subject.

2. Section 3-104 does not violate the non-delegation doctrine, but any rulemaking promulgated solely pursuant to section 3-104 is invalid as it renders that section, as applied, an unconstitutional delegation to an executive branch agency.

3. Any rule promulgated relying only on the general "powers and duties" within section 3-104 is invalid and may not be enforced by the State Department of Education or the Board.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA