1I. INTRODUCTION

II. FACTUAL BACKGROUND

The Tulsa 9.12 Project submits this brief in opposition to Petitioners' brief and

to support the Defendants' arguments. This case raises important questions under

the Oklahoma State Constitution regarding the role of the Oklahoma Legislature as it

relates to the Oklahoma State School Board in the development, design and

implementation of our state's education standards.

The Tulsa 9.12 Project seeks to provide this Court with an additional

perspective on these issues as well as provide background information regarding the

passage of HB 3399 and how it relates to SB 2033 (2010).

The Tulsa 9.12 Project has long been committed to informing the citizens of

the state of Oklahoma about good practical education standards and techniques as

well as working with legislators in the development of Oklahoma's education

standards. It has spent several years attempting to prevent the Oklahoma Academic

Standards ("OAS") (commonly referred to as "Common Core") from being

implemented in the state of Oklahoma, and worked with the Legislature in securing

the passage of HB 3399.

In 2010, the Oklahoma Legislature passed SB 2033. SB 2033 amended

OKLA. STAT. tit 70 11-103.6a to read as follows:

B. By August 1, 2010, the State Board of Education shall adopt revisions to the subject matter curriculum adopted by the State Board for English Language Arts and Mathematics as is necessary to align the curriculum with the K-12 Common Core State Standards

2developed by the Common Core State Standards Initiative, an effort coordinated by the National Governors Association Center for Best Practices and the Council of Chief State School Officers. The revised curriculum shall reflect the K-12 Common Core State Standards in their entirety and may include additional standards as long as the amount of additional standards is not more than fifteen percent (15%) of the K-12 Common Core State Standards.

Essentially, the Legislature directed the Oklahoma State Board of Education

to adopt the Oklahoma Academic Standards ("OAS") (commonly referred to as

"Common Core"). At this time, the Legislature asserted its authority as superior to

the Board's in developing education standards. The Legislature forced the Board to

adopt the Common Core State Standards, and no objection was raised by the

Oklahoma State Board of Education.

The Common Core standards were not to be mandatory for school districts

until the 2014-15 school year. During the past year, as many school districts began

to implement Common Core it became apparent that the people of the State of

Oklahoma did not want those standards, but wanted education standards which are

developed in Oklahoma.

To remedy the situation, the Legislature passed HB 3399. HB 3399, further

amended OKLA. STAT. tit 70 11-103.6a, removing the provisions for Common Core

and directing the Board to develop new education standards to be presented to the

legislature on or by August 1, 2016. Additionally, schools were to either continue

using or revert back to the education standards used prior to the passage of SB

2033.

3In order to prevent the issues with the education standards from reoccurring;

the Legislature included a provision in HB 3399, 4, which directs the Board to

submit the proposed education standards to the Legislature for approval before

implementation. It is this provision that Petitioners find abhorrent and have brought

this suit before the Court challenging the constitutionality of HB 3399.

III.

Jurisdiction is improper and this matter should be dismissed for the following

reason:

A. The Issues Tendered by the Petitioners are not Ripe for Review.

B. The Petitioners do not have the Proper Standing to bring this Matter before

this Court.

A claim is "ripe" when the facts of the case have matured into an existing

substantial controversy warranting judicial intervention. In this matter, the facts have

not matured; therefore are not ripe for judicial intervention. The factors to be

considered in any ripeness analysis are the fitness of the issues for judicial decision

and the hardship to the parties of withholding court consideration.

, 1987 OK 39, 8, 737 P.2d 565, 568.

The ripeness doctrine is a part of judicial policy militating against the decision

of abstract or hypothetical questions. The conclusion that an issue is not ripe for

ARGUMENT

PROPOSITION I: JURISDICTION IS IMPROPER AND THIS MATTER SHOULD BE DISMISSED.

A. The Issues Tendered by the Petitioners are not Ripe for Review.

H & L Operating

Co. v. Marlin Oil Corp.

adjudication emphasizes a prospective examination of the controversy indicating

that future events may affect its structure in ways that determine its present

justifiability. Subsequent events may sharpen the controversy or remove the need

for decision of at least some aspects of the matter.

1991 OK 1, 7, 805 P.2d 650, 652 653.

Petitioner case hinges on abstract and hypothetical circumstances relating

to the Oklahoma Legislature reviewing education standards which have not been

developed and are not due to be resented until 2016. Petitioners mistakenly argue

that the constitutionality of HB 3399 needs urgent resolution because the result will

determine the pace, content, sequence, and manner of instruction and assessment

in public schools statewide beginning this next August. This is incorrect and

extremely misleading. According to HB 3399 3

3. Until the statewide student assessments for English Language Arts and Mathematics are implemented as provided for in paragraph 1 of subsection C of this section, he State Board of education shall implement the subject matter standards for English Language Arts and Mathematics which were in place prior to the revision adopted by the Board in June 2010. (emphasis added)

The education standards to be implemented this coming August are the same

ones that have been used and approved by the Board of Education prior to the

passage of SB 2033 (2010). For many of the schools in the state of Oklahoma,

these standards were the ones used for the 2013 14 school year and would require

no change from the individual school districts.

The basic rationale of the ripeness doctrine is twofold: 1) to prevent the

courts, through avoidance of premature adjucation, from entangling themselves in

French Petroleum Corp. v.

Oklahoma Corp. Com'n

5abstract disagreements over administrative policies; and 2) to protect agencies from

judicial interference until their administrative decisions have been formalized and

their effects felt in a concrete way by the parties. , 387

U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691 (1967);

, 1980 OK 116, 14, 616 P.2d 1143, 1148.

Here the issues complained of by the Petitioners regard provisions which are

not possibly taking effect until 2016. According to HB 3399, the State Board of

Education is directed to develop new standards and those standards will be

reviewed by the Legislature in the future. In fact, Petitioners even acknowledge that

the practical result of the Legislature's actions by actual experience cannot yet be

judged in their own to the Court! ( p.10 fn. 1).

The question of ripeness often arises in cases where the harm asserted by

the petitioner has not yet occurred. Because courts are not permitted to decide

merely hypothetical questions or possibilities, the court must determine whether the

issues today are fit for judicial review. Here it is generally unknown how the

Legislature may impose the authority to review the standards two (2) years from

now, and ruling made by this court would be surely speculative. As the Petitioners

will suffer no undue hardship and it is tentative at best how the Legislature will

invoke the provisions found in HB 3399, 4; this matter is not ripe for adjudication

and should be dismissed at this time.

Abbott Labortories v. Gardner

Western Okla

Chapter v. Corporation Comm'n

Brief See Petitioners' Brief,

B. The Petitioners do not have the Proper Standing to bring this Matter before this Court.

6"When standing of a party is brought into issue, the focus is on the party

seeking to get the complaint before the court, and not on the issues the party wishes

to have adjudicated."

, 2009 OK 90, 18, 227 P.3d 133.

To establish standing, the Petitioners must show (1) a concrete,

particularized, actual or imminent injury in fact, (2) a causal connection between the

injury and the alleged misconduct, and (3) a protected interest "within a statutorily or

constitutionally protected zone."

, 2007 OK 30, 7, 158 P.3d 1058. (citing

1982 OK 2, 10, 649 P.2d 1233, 1237.)

First, there is no concrete, particularized, actual or imminent injury in fact.

Petitioners complaint is against a provision for the State Board of Education to

develop new standards which are to be presented to the Legislature in 2016. The

education standards to be implemented this coming August are the same ones that

have been used and approved by the Board of Education.

Second, there is no misconduct by the Legislature. Pursuant to Okla. Const.

art. XIII, 1, "[t]he Legislature shall establish and maintain a system of free public

schools wherein all the children of the State may be educated." The Legislature is

authorized and obligated to maintain the public education system. In fulfilling this

obligation the Legislature has to establish standards. As demonstrated later in this

brief, HB 3399 does not infringe on the constitutional authority of the Petitioners or

State of Oklahoma ex rel. Board of Regents v. McCloskey

Brothers

Oklahoma Education Association v. State ex rel.

Oklahoma Legislature Indep. Sch. Dist. No.

9 v. Glass,

7the Board and therefore there can be no causal connection between some

speculative injury and the actions of the Legislature fulfilling its obligations.

Finally, Petitioners do not have a protected interest within a statutorily or

constitutionally protected zone. There is nothing within our State Constitution or in

the statutes which authorizes suits out of the Legislature's development and

implementation of education standards. When a party does not rely on a particular

statute or constitutional provision authorizing suit, the question of standing depends

on whether the party has "alleged a personal stake in the outcome of the

controversy."

, 2007 OK 30, 16, 158 P.3d 1058.

While Petitioners contend that their positions as Educators and members of

the State Board of Education gives them a personal state in the outcome of the

controversy, this personal stake is no greater than any other citizen of the State of

Oklahoma.

To invoke a constitutional analysis of an act of the Legislature this Court must

be presented with a proper case in which the person complaining about the statute

has been, or is about to be "denied some right or privilege to which he was

. . . ." , 1943 OK 11, 4, 132 P.2d 950, 952.

(Emphasis added.) "In other words as a general rule the courts decide questions

only when those urging them have an interest to protect . . . ." In the present

matter, Petitioners failure to meet any one of the three criteria demonstrate a lack of

standing on their part and this matter should be dismissed.

Oklahoma Education Association v. State ex rel. Oklahoma

Legislature

lawfully

entitled City of Shawnee v. Taylor

Id.

8PROPOSITION II: PETITIONERS ARE WRONG IN ASSERTING HB 3399 VIOLATES THE OKLAHOMA STATE CONSTITUTION.

A. HB 3399 does not infringe on the Constitutional Authority of the Board.

Generally, this Court will not address the constitutionality of a legislative act...

until presented with a proper case in which it appears the complaining person has

been or is about to be denied a right or privilege to which the person is lawfully

entitled. ,

2007 OK 30, 15, 158 P.3d 1058.

Except for the reservation of the power of initiative and referendum, the

state's policy-making power is vested exclusively in the Legislature. This court has

already held the Legislature's policy-making power specifically includes public

education. ,

2007 OK 30, 20, 158 P.3d 1058. citing Okla. Const. art. IV, 1; art. V, 55; art, XIII,

1; 1989 OK 93, 5, 776

P.2d 556, 557.

Pursuant to Okla. Const. art. XIII, 1 of the Oklahoma Constitution, "[t]he

Legislature shall establish and maintain a system of free public schools wherein all

the children of the State may be educated." The Legislature is authorized to

maintain the public education system including establishing standards. "[T]he

Legislature's acts are presumed constitutional and should be upheld unless plainly

and clearly within express prohibitions and limitations fixed by the Constitution, or

unless it exercised its authority arbitrarily and capriciously; and any doubt should be

Oklahoma Education Association v. State ex rel. Oklahoma Legislature

Oklahoma Education Association v. State ex rel. Oklahoma Legislature

In re Initiative Petition No. 332, State Question No. 598,

9resolved in favor of the power of the Legislature." , 415 P.2d

597, 600 (Okla. 1966). In HB 3399

Petitioners claim that HB 3399, 4, infringes on the constitutional authority of

the State Board of Education, because it forces the State Board of Education to

develop standards and then for those standards to be submitted to the Legislature

on or by August 1, 2016. While there is no dispute that the Board is constitutionally

empowered with "the supervision of instruction of public schools". Okla. Const. art.

XIII, 5. It is a stretch to interpret "supervision" as setting or creating the applicable

standards for instruction and assessment without the Legislature's input. In fact, a

more reasonable interpretation of the duties of the Legislature would include direct

involvement in the development of the standards.

In enforcing the law, courts look to determine within the Constitution whether

the Legislature is prohibited from legislating rather than whether the Legislature is

authorized to legislate. , 545 P.2d 753, 760-61 (Okla. 1976). "If

there is any doubt as to the Legislature's power to act in a given situation, the doubt

should be resolved in favor of validity of the action taken by the Legislature." at

761. "Restrictions and limitations upon Legislative power are to be construed strictly,

and are not to be extended to include matters not covered or implied by the

language used."

The Court should rule that HB 3399 is constitutional as In the present matter,

any question in interpreting the Legislature's actions should fall in the Legislature's

favor.

Spearman v. Williams

Wiseman v. Boren

Id.

Id.

10

B. HB 3399 Does Not Violate Oklahoma's Constitutional Separation of

Powers.

whose powers and duties shall be prescribed by law

Petitioners argue that HB 3399, 4 violates the principle of separation of

powers in the Oklahoma Constitution. This is simply not the case. As stated

previously, it has already been held the Legislature's policy-making power

specifically includes public education.

, 2007 OK 30, 20, 158 P.3d 1058. As such the

Legislature may invoke its natural power to review the standards adopted by the

State Board of Education, and has done so on numerous occasions.

The Constitution of the State of Oklahoma clearly provides that [t]he

supervision of instruction in the public schools shall be vested in a Board of

Education, . Okla. Const.

art. XIII, 5 (emphasis added). This provision undeniably vests authority over the

powers and duties of the State Board of Education in the Legislature.

This relationship is analogous of the Legislature being the parent of a child,

while the State School Board is the babysitter. The babysitter is instructed by the

parent to oversee the behavior of the child and has some discretion when it comes

to the minute details when dealing with the child, but the ultimate authority is the

parent. Here just as in times past, the Legislature is the ultimate authority when it

comes to the development of the State's Education Standards.

In addition, it is clear that the Legislature completely stripped the Board of any

power in developing the State's education standards with the passage of SB 2033

Oklahoma Education Association v. State ex

rel. Oklahoma Legislature

11

(2010). In amending OKLA. STAT. tit 70 11-103.6a, the Legislature completely

directed the Board to implement standards developed outside of the state with little

to no input. In reality, HB 3399 gives the authority in developing standards back to

the Board. The Court should find that HB 3399 is constitutional in the present

matter, as it does not violate the constitutional separation of powers and actually

awards the Board with more authority than it has had in recent years.

Upon review of this matter, this court should deny Petitioners requested relief

as the issue is not ripe and they do not have the proper standing to bring this suit. In

addition, HB 3399, does not violate the Oklahoma State Constitution as it does not

infringe on the Constitutional Authority of the Board, but in fact reallocates authority

taken by SB 2033 (2010).

Respectfully Submitted,

__________________________John Paul Jordan, OBA #22613THE JORDAN LAW FIRM1703 Professional Cir., Ste. 501AYukon, Oklahoma 73099Telephone: 405.222.8721Facsimile: 877.335.5521Email: FOR AMICUS CURIAE

CONCLUSION

TULSA 9.12 PROJECT

jp@jpjordanlaw.com

12

CERTIFICATE OF MAILING TO ALL PARTIES AND COURT CLERK

I hereby certify that a true and correct copy of the

was mailed this 9thday of July, 2014 to the following:

ROBERT G. MCCAMPBELL, OBA#10390K. MCKENZIE ANDERSON, OBA#30471FELLERS, SNIDER, BLANKENSHIP,BAILEY & TIPPENS, P.C.100 N. Broadway, Suite 1700Oklahoma City, Oklahoma 73102Phone: 405.232-0621Facsimile: 405.232.9659ATTORNEY FOR PETITIONERS

Office of the Attorney General2300 N. Lincoln Blvd., Suite 112Oklahoma City, OK 73105

Speaker of the House2300 N. Lincoln Blvd., Room 401Oklahoma City, OK 73105

President of the Senate2300 N. Lincoln Blvd., Room 422Oklahoma City, OK 73105

Office of the Governor2300 N. Lincoln Blvd., Room 212Oklahoma City, OK 73105

Office of the Superintendent of Public InstructionOklahoma State Department of EducationOliver Hodge Building2500 North Lincoln BoulevardOklahoma City, Oklahoma 73105

__________________________John Paul Jordan

Brief of Amici Curiae The Tulsa 9.12 Project in Opposition to Petitioners' Brief in Support of Application to Assume Original Jurisdiction and Petition for Writ and Declaratory Relief

Pro Tempore

2