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About the HB 3399 Lawsuit

July 13, 2014

The Oklahoma State Department of Education’s summer conference (Vision 2020) is coming to Oklahoma City this week. If you’re going to be around anyway, you might want to drop by the Capitol for Tuesday’s hearing over the constitutionality of HB 3399 – the law overturning the Common Core – in front of the full Oklahoma Supreme Court.

Notice of Oral Argument

No. 112,974

Charles Edward Pack, II; Mara Novy;
Leonardo De Andrade; Elizabeth
Luecke; Nancy Kunsman; Heather
Sparks; Leo J. Baxter; Amy Anne
Ford; William F. Shdeed; and Daniel


State of Oklahoma; President Pro
Tempore of the House of
Representatives; Oklahoma State Department of Education,


Oral Presentation before a Referee is hereby stricken and oral argument before the Oklahoma Supreme Court is set for 10:00 am on July 15, 2014, in the Supreme Court Courtroom located on the 2nd floor of the State Capitol.

I try to follow closely what happens at the SDE (and by extension, with the State Board of Education), because it is directly relevant to the profession and the things I choose to include on this blog. To a lesser extent, I pay attention to Governor Fallin and the Legislature. Yes, their decisions impact education heavily, but they also work on many issues that are not germane to this blog. I have never followed the on goings of the state Supreme Court. Occasionally, I’ll read in the Tulsa World or Oklahoman that some act of legislative overreach has been overturned. Beyond that, I really just don’t have a read for the people who wear the robes.

The actual petition to the Court is only 17 (double-spaced) pages, and is a very quick read. The legalese is minimal, in case you’re turned off by that kind of thing. Below are the petitioners’ claims (pages 7-10  tell us about the petitioners).

Petitioners are parents, teachers, and members of the Oklahoma State Board of Education (the “Board”) who ask this Court to declare HB 3399 unconstitutional on two grounds. First, HB 3399 allows the Legislature to encroach on the authority granted to the Board in the Oklahoma Constitution – to supervise instruction in public schools – by giving the Legislature exclusive authority to rewrite and approve the State’s subject matter standards for instruction in public schools. Second, HB 3399 violates the Oklahoma Constitution’s separation of powers doctrine by allowing the Legislature to exert coercive influence over the Board, an Executive agency.

Essentially, nobody is arguing that the Legislature lacked the right to overturn the Common Core. The question is whether HB 3399 gave lawmakers additional powers and depleted the authority of the SBE to a degree that violates the state constitution. What makes all of this even messier is the fact that outside groups helped frame the lawsuit. Even more complicated is the impact of the loss of standards on the state waiver to provisions of No Child Left Behind. That itself is the subject of two breakout sessions at Vision 2020. Keep in mind that these outside interests don’t care about the constitutionality question. They’re interested in whether or not Oklahoma reinstates the Common Core.

I know from the last several months that even among the community of education activists in this state, the most divisive issue we discuss is the Common Core. Many of my blog’s readers are adamantly opposed to the standards. I am not. I have read them and worked with fellow educators on their implementation. I think they are appropriate for the students. I also don’t think they’re the defining issue in Oklahoma education.

That would be testing. Common Core testing is more complicated. It is more expensive. We are ill-equipped to look at whatever results the tests yield and assign meaning. Still, I think most of the collaboration and professional development that has taken place over the last four years in preparation for this transition has been positive and provided a focus on effective teaching. Regardless of what happens with the standards (Common Core, PASS, or otherwise), Oklahoma schools ultimately hire teachers to teach and build upon whatever knowledge and skills they have to improve the quality of instruction provided to students.

Once high-stakes tests are in the equation, however, everybody’s focus is on preparing students for those. It isn’t the state standards or what we’ve learned about best practice that guides us. It’s predicting and planning for the test. What standards will be tested? How will the testing company word the questions? What can we learn from previous or released testing items? What was the cut score last year? What supplemental test prep programs can we buy and convince ourselves to be the most effective?

I believe in having high standards – expectations for what students can do. I believe in accountability – some measure of learning that the public can understand. I just don’t like what all of this has done to the public education culture.

Since I became active blogging and through social media in 2012, I have met (virtually) countless individuals – both parents and educators – who are passionate about public schools. None of them agree on every single issue, but there are points in which a preponderance of connected activists have seemed to converge. The biggest one is testing. There’s too much of it. We assign too much meaning to it. We make critical decisions based on tests that give us questionable results. We cut meaningful programs because of it. Though the Court’s decision on the constitutionality questions relative to this lawsuit won’t change testing, we know that the stakes are high.

If the Court rules for the plaintiffs, HB 3399 would be gone. The 2014-15 standards for English/Language Arts and math would be the Common Core. Teachers who have been well-prepared for this transition would implement instruction based upon that planning. Teachers who are not, would get as close to it as they could while making every attempt at finding the training opportunities to get close to it.

On the other hand, if the Court rules for the defendants, all schools will revert to PASS for ELA and math. What I hear from many is that they will not take alignment to Common Core out of their instructional plans. Rather, they will look for the places where the two sets of standards are aligned, and rearrange any remaining content so that they don’t have instructional gaps. Teachers who were ready to flip the switch all the way over to Common Core next month will probably still use whatever methods they have learned in the last few years. The standards themselves do not determine the extent of a teacher’s professional repertoire. Keep in mind that in several districts students entering the third grade have only been taught under the Common Core.

Rob Miller effectively captured this struggle a couple of weeks ago.

I have already received some constructive feedback on my suggestion that we just readopt the 2010 PASS standards and move on. There are a significant number of educators who believe strongly that the common core standards were a significant improvement over PASS. My own teachers tell me the same thing. There is a lot of frustration over the quick repeal of standards for which we had spent three years developing curriculum and instruction.

I also recognize that there is not a chance in hell that we will go back to the 2010 PASS standards, even if Janet Barresi tells us to go there. Let’s face it—the ACT, SAT, and NAEP tests will all be aligned to common core standards. Whatever we eventually adopt in Oklahoma will have to be similar to common core to allow our students to be competitive on these national assessments. That’s just reality.

Every bit of that makes sense, and Rob didn’t even mention Advanced Placement (and Pre-AP) courses, the content of which often supersedes whatever the state standards are. The problem is the time we spend chasing success on our useless state assessments. That was true under the previous SDE administration. It’s true now. It’ll still be true in January when there’s a new sheriff in town. Hopefully, the new state superintendent will work with others in state government to change this. Above all else, that’s what I’m looking for.

This is why while I’m interested in what happens at the Supreme Court, I’m not going to lose any sleep over whatever the decision happens to be. When school starts in August, teachers throughout Oklahoma will teach what they think matters and do it to the best of their abilities. If we don’t have a determination on the state standards, oh well. At some point, the SDE will figure out what to do about testing. As soon as they do, we will get a new state superintendent. And a bunch of new legislators. And possibly a new governor.

Then it can change again.

  1. Dan Vincent
    July 13, 2014 at 5:04 pm

    This captures the issue quite well. Testing is the fuel for the engines of most every other educational reform. That is the issue at its core. Nicely said.


  2. Kevin Hime
    July 13, 2014 at 5:24 pm
  3. joeddins
    July 13, 2014 at 8:10 pm

    Please develop ” …high standards – expectations … ” High – Stakes test is the big deal. I appreciate what you do.


  1. July 14, 2014 at 6:06 pm
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