�2 To be eligible for participation in the Henry Program, a private school must notify the State Department of Education (the "Department") of its intent to participate, meet certain statutory requirements, and receive the Department's approval. See id. � 13-101.2(H). Among these requirements is that "the private school . . . complies with the antidiscrimination provisions of 42 U.S.C., Section 2000d." Id. � 13-101.2(H)(1)(c). Section 2000d, also known as Section 601 of Title VI of the federal Civil Rights Act of 1964, provides as follows:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

42 U.S.C. � 2000d (emphasis added). In essence, Section 2000d "condition[s] an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds." Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998) (citations omitted).

�3 Soon after enactment of the Henry Program, the Department promulgated rules to govern its eligibility determinations. See generally OAC 210:15-13-7. Until 2019, the eligibility requirements for private schools simply incorporated by reference the eligibility criteria from the Henry Program statute. See id. 210:15-13-7(c) (amended 2019). ("In order to be eligible to accept students on the scholarship, private schools must be accredited . . . and meet all other requirements for participating private schools as listed in

Schools that wish to participate in the Lindsey Nicole Henry Scholarship Program should note that the antidiscrimination provisions of 42 U.S.C. � 2000d, which a school must comply with in order to participate in the program, incorporate Executive Order 13160 (2000) and prohibit discrimination on the following bases:

36 Okla. Reg. 827 (July 15, 2019).

�4 For the authority to make this change, the proposed rule cited the general powers of the State Board of Education set forth in Title 70, Section 3-104 and the Department's authority to administer the Henry Program, as set forth in Title 70, Section 13-101.2. See 36 Okla. Reg. 827. No public comments on the proposed rulemaking were received and the rule was ultimately approved by the Legislature and the Governor in an omnibus joint resolution. See H.J. Res. 1022, 57th Leg., 1st Reg. Sess. (2019).

�5 To summarize, in 2019 the Department by rule imposed new eligibility requirements for private schools wishing to participate in the Henry Program. This included a new requirement that participating schools must not discriminate against six protected classes (sex, disability, religion, age, sexual orientation, and parental status)--in addition to the three classes expressly mentioned in Section 2000d (race, color, and national origin). In doing so, the Department asserted that Section 2000d's antidiscrimination provisions incorporated EO 13160 and thus were extended to the additional protected classes.

�6 You have asked whether the Department's rulemaking described above is lawful under the Oklahoma Administrative Procedures Act. For the reasons that follow, the rule misinterprets both federal law and the statute authorizing the Henry Program, and was therefore beyond the authority of the Department to promulgate under the Administrative Procedures Act. Accordingly, the rule is not enforceable to the extent it adds to the requirements set forth in statute.

�7 When interpreting a state statute, we start with the statutory text. Liddell v. Heavner,

�8 Here, the text is clear. The Henry Program statute requires participating schools to comply with the antidiscrimination provisions of Section 2000d. See

�9 Nevertheless, in the 2019 rule change described above, the Department asserts that the antidiscrimination provisions of Section 2000d "incorporate Executive Order 13160" and its prohibition of discrimination on the basis of sex, disability, religion, age, sexual orientation, and parental status. See OAC 210:15-13-7(c). This is incorrect. Section 2000d was enacted by Congress 36 years before President Clinton's issuance of EO 13160. Section 2000d cannot be said to have "incorporate[d]" EO 13160 unless Congress amended Section 2000d after EO 13160 was issued in 2000 and expressly incorporated the EO. See Incorporate, MERRIAM-WEBSTER, www.merriam-webster.com (defining "incorporate" as "to unite or work into something already existent so as to form an indistinguishable whole" (emphasis added)). However, Section 2000d has not been amended since 1964.

�10 More fundamentally, federal statutes cannot be amended or expanded by Executive Order. See U.S. CONST. art. II, � 3 (President "shall take Care that the Laws be faithfully executed"); Anthony List v. Driehaus, 779 F.3d 628, 630 (6th Cir. 2015) ("The parties . . . acknowledge that executive orders do not amend statutes."); Doe H. v. Haskell Indian Nations Univ., 266 F. SupP.3d 1277, 1286 (D. Kan. 2017) ("Of course, Executive Order 13160 is not an act of Congress."). And consistent with this principle, EO 13160 did not even purport to interpret or expand Section 2000d to cover all the protected classes now found in the Department's regulation. Rather, it acknowledged explicitly that each of several federal anti-discrimination statutes applied to different--although sometimes overlapping--protected classes. See Exec. Order No. 13,160, 65 Fed. Reg. 39,775. In essence, EO 13160 referenced the full gamut of protected classes from several federal laws--not just Section 2000d--as a guide for creating a broader executive branch standard for the operation of education and training programs conducted by the federal government. But it did not--and indeed cannot--alter the meaning of Section 2000d. Cf. Marshall v. Webster Bank, N.A., No. 3:10-CV-908 JCH, 2011 WL 219693, at *7, n.4 (D. Conn. Jan. 21, 2011) ("Executive Order [13160] cites Title VI as one of a number of '[e]xisting laws and regulations [that] prohibit certain forms of discrimination in Federally conducted education and training programs and activities.' It does not suggest that Title VI's application is limited to education and training programs.").

�11 Finally, since the issuance of EO 13160, courts have repeatedly indicated that Section 2000d covers only the classes expressly listed in the statute. See, e.g., Doe v. Galster, 768 F.3d 611, 617 (7th Cir. 2014) ("Title VI protects students from discrimination only if it is based on race, color, or national origin, and Title IX only if based on sex." (emphasis added)), Sanders v. Anoatubby, 631 F. App'x 618, 622 (10th Cir. 2015) (unpublished) (Section 2000d "prohibits intentional discrimination of individuals based on their race, color, or national origin . . . ."), Foster v. Michigan, 573 F. App'x 377, 388 (6th Cir. 2014) (unpublished) ("Because Title VI only applies to discrimination on the basis of race, color, or national origin, the district court properly dismissed Appellants' gender-based Title VI claims." (emphasis added)). See also Rosario de Leon v. Nat'l College of Bus. & Tech., 663 F.Supp.2d 25, 35 (D. Puerto Rico 2009) (A "private plaintiff may not bring a [] suit [under Executive Order No. 13160] against a defendant for acts not prohibited by the text of [Title VI]." (brackets in original)).

�12 In the end, Section 2000d prohibits discrimination only based on race, color, or national origin, and it is plain that the Legislature intended the Henry Program's requirements incorporate only the text of that provision. If the Legislature had wanted to incorporate all of the protected classes found in EO 13160, it could have referenced EO 13160 expressly or included additional protected classes. Instead, the Legislature referenced only Section 2000d and that is how the statute must be read.

�13 In Oklahoma, state agencies 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,

�14 In promulgating the rule in question, the Department did not point to any particular grant of authority from the Legislature. Rather, it cited Title 70, Section 3-104, which generally outlines the "powers and duties" of the State Board of Education. Nothing in Section 3-104, however, references the Henry Program, nor does it expressly or implicitly authorize the actions taken here.

�15 Next, the Department cites the Henry Program statute itself--Title 70, Section 13-101.2. But importantly, that statute explicitly prohibits regulations that exceed the express statutory criteria for schools to participate in the Henry Program:

The inclusion of private schools within options available to public school students in Oklahoma shall not expand the regulatory authority of the state or any school district to impose any additional regulation of private schools beyond those reasonably necessary to enforce the requirements expressly set forth in this section.