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Drummond issues opinion on State Board of Education rulemaking authority

OKLAHOMA CITY (April 4, 2023) - Oklahoma law does not give the State Board of Education (SBE) the ability to make administrative rules without proper direction from the state Legislature, Attorney General Gentner Drummond ruled in a formal opinion issued today. 

“It is well settled that an agency may only exercise the powers expressly given by statute,” the opinion states. “An agency cannot expand those powers by its own authority.” 

Drummond commented on the opinion, saying the content of the rules are irrelevant to the issue of whether proper authority exists to issue them.

“Whether I agree or disagree with any particular rule in question is irrelevant if the Board does not have the proper authority to issue those rules,” he said. “The Legislature is vested with policymaking authority. I will not allow any state agency, board or commission to usurp the Legislature’s rightful role, even if they have the best of intentions.”

While the opinion notes that the Legislature may delegate some rulemaking authority to the SBE, relying solely on the Board’s general powers and duties is improper for rulemaking. Any delegation of authority to the SBE to determine facts and enact rules must also come with prescribed legislative standards to guide the agency.

The opinion also notes that any rules enacted by the Board exceeding its authority are void, cannot be placed into effect, and cannot be enforced by either the Oklahoma State Department of Education or the SBE.

As a result, the opinion concludes that reliance on the agency’s general powers and duties “constitutes either an impermissible abdication of lawmaking responsibility or an impermissible delegation of policymaking authority to the Board. Either way, it constitutes an impermissible invasion of the proper province of the Legislature secured for it by article IV, section 1 of the Oklahoma Constitution — which is something this office will not permit.”

State Rep. Mark McBride requested the opinion last month. On March 20, Drummond’s office sent a non-binding letter of counsel to the legislator answering his questions about the board’s rulemaking authority. A formal opinion was not initially issued because the question related to legislation that was pending at the time.

Read the full opinion at