“We will not allow it,” “We are not going to tolerate it,” and “Don’t test me” are phrases regularly directed by Walters toward local school districts, teachers and superintendents. Most people recognize that in adult relationships the issuance of threats is not the most effective way to get the results you want.

One must wonder where this bravado comes from. Does the superintendent really have the power to act like he’s the boss of everyone?

Let’s start with basic documents. Article 6, Section 1 of the Oklahoma Constitution creates the Office of Superintendent of Public Instruction and provides that the superintendent “shall perform such duties as may be designated in this constitution or prescribed by law.”

Article 13, Section 5 of the constitution provides, “The supervision of instruction in the public schools shall be vested in a Board of Education, whose powers and duties shall be prescribed by law. The Superintendent of Public Instruction shall be President of the Board.”

So, beyond being a member of certain other state boards, the only constitutional duty of the state superintendent is to be president of the State Board of Education. It is the Board of Education, not the superintendent, to whom the constitution gives the duty to supervise “instruction in the public schools.” All other enumerated duties of the superintendent and the board are from laws passed by the Legislature.

Following this constitutional framework, the Legislature in the School Code has provided that the State Board of Education shall “adopt policies and make rules for the operation of the public school system of the state” (70 O.S. 3-104). It has provided in the School Code that the superintendent “shall have the control of and direct the State Department of Education.” In addition, the superintendent shall give advice and recommendations to the board, present all recommendations of the department to the board, and be responsible for interpretation of the policy and rules set by the board. (70 O.S. 107.1)

How did we reach a point where Walters is issuing threats and edicts to the schools, district superintendents and teachers? That’s not a hard question.

Until 2011, the State Board of Education consisted of the superintendent and six members appointed by the governor with the advice and consent of the Senate for six-year terms. Terms were staggered so that only one term expired each year. Once appointed, the members were not subject to removal except for cause, as are other state officials. They functioned as a board, drawing on each other’s collective judgment and wisdom to make policy after receiving the advice and recommendations of the superintendent and the department.

In 2011, after the elections of Gov. Mary Fallin and State Superintendent Janet Barresi, the Legislature decided the staggered terms, leaving a majority of members appointed by Gov. Brad Henry in place to be termed out one year at a time, was too long to wait. They changed the law, immediately ending the terms of all current board members and providing for members to be appointed by each new governor to serve at the pleasure of the governor during his or her term of office.

Since passage of the 2011 law, the real power to govern public education in Oklahoma is in the hands of the governor, because he appoints the board and the board serves at his pleasure. If a board member does not vote the way he wants, the governor can remove the member and appoint someone who will comply, which Gov. Kevin Stitt has done.

Walters can do what he does not because he has the power but because Stitt and the board he appoints and controls let him do it. Understandably the Legislature is reluctant to impeach Walters, as called for by some. After all, policy disagreements are not grounds for impeachment.

But the Legislature is not powerless. It could amend the State Board of Education membership, as it has done before, in such a way that the board has enough independence to function like a school board, not a rubber stamp for the governor and the state superintendent.

This could place the power to supervise public instruction in Oklahoma schools back where it was intended by the constitution: in the hands of the State Board of Education.

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