Conflict over special-needs scholarship law on hold for now
BY KIM ARCHER World Staff Writer
Monday, November 05, 2012
11/05/12 at 7:36 AM
Controversy over a law that allows the use of public funds to send special-needs students to private schools may have died down for now.
But it likely will flare up again if, or when, the Oklahoma Supreme Court decides to consider the case.
Rep. Jason Nelson, R-Oklahoma City, and author of the legislation, recently told the Tulsa World that he has heard little about when the court might consider the case.
"I've not heard a thing. Even speculation has ceased at this point," he said. "Some attorneys I've visited with aren't surprised at the pace of the appeal and expect that the court will hear oral arguments later this year or early next year. But no one I've talked to really knows."
Former Gov. Brad Henry signed the Lindsey Nicole Henry Scholarships for Students with Disabilities Act into law nearly 2 1/2 years ago. The law was named after his infant daughter who died from a rare neuromuscular disease.
So far this year, 188 students are in private schools using the vouchers, up from 149 students who participated in the program last year, according to the Oklahoma State Department of Education.
Last year, the state spent $969,166.07 of common education funding for the scholarships.
The department doesn't have current spending figures because it hasn't yet received invoices for the first quarter of the school year, said spokeswoman Tricia Pemberton.
Since the law was enacted, public school advocates have argued it should be struck down because it violates the state constitution's ban on the use of public funds by private religious institutions.
Last month, the state Board of Education voted to add three schools to the list of those approved to accept the scholarships. Of the 44 on that list, only three are not religiously affiliated.
Educators also say the law siphons state funding from public schools that desperately need it.
The case began last year when Union and Jenks countersued the parents of five special-needs children to challenge the constitutionality of the scholarships act.
In June, a Tulsa District Court judge ruled the law was unconstitutional, yet left it in place until an appeal is considered.
The Becket Fund for Religious Liberty in Washington, D.C., later filed a brief with the state Supreme Court on behalf of the parents of five special-needs students who accepted the scholarships.
The attorneys, who are providing their legal services for free, argued in the brief that the law only would violate the Oklahoma Constitution's prohibition against using state funds for private sectarian uses if the aid "is used by the state to promote religion or to discriminate on the basis of religion. The Scholarship Act does neither. It is religiously neutral in every respect."
Attorneys for the Union and Jenks school districts filed their response two weeks later, arguing the state constitution authorizes the Legislature to fund a system only of free public schools.
The law, they wrote, diverts public funds from public schools "and into a competing system of private schools that are not open to all the children of the state."
House Bill 3393 timeline
June 2010: Lindsey Nicole Henry Scholarships for Students with Disabilities Act, or House Bill 3393, is signed into law.
Fall 2010: Broken Arrow, Jenks, Liberty, Tulsa and Union school boards vote not to process the scholarships.
Jan. 18, 2011: Oklahoma Attorney General Scott Pruitt threatens legal action against those school districts and individual board members if they fail to comply with the law within the week.
Jan. 24, 2011: Broken Arrow, Jenks, Liberty and Union school districts announce that they will sue Pruitt over the constitutionality of the law. They also vote to process scholarships under the law until a decision on its constitutionality is made.
April 2011: Twenty parents sue Broken Arrow, Jenks, Tulsa and Union school districts, alleging their special-needs children were denied private school scholarships in 2010-11.
May 2011: The state Legislature passes HB 1744, which transfers responsibility for administering the scholarship program from the districts to the Oklahoma State Department of Education.
July 2011: In light of that legislation, federal Chief Judge Claire Eagan grants the parents a stay so they can pursue "administrative remedies" through the state Education Department. Eagan also invites the school districts to file their challenge of HB 3393's constitutionality in state court.
September 2011: Jenks and Union school districts file a countersuit in state court to challenge the constitutionality of the Lindsey Nicole Henry Scholarships for Students with Disabilities Act on behalf of all school districts. Their suit names the parents of three students in each district who participated in the federal lawsuit against the schools.
November 2011: A federal lawsuit filed against the Broken Arrow, Jenks, Tulsa and Union school districts by a group of parents alleging that their special-needs children were denied private school scholarships is dismissed at the parents' request.
March 27: Tulsa District Judge Rebecca B. Nightingale strikes down the law, ruling it unconstitutional.
June 15: Attorneys for parents of special-needs children file a brief with the Oklahoma Supreme Court.
June 29: Attorneys for Jenks and Union school districts file their response to the parents' appeal with the Supreme Court.
Original Print Headline: Conflict over special-needs scholarships on hold for now
Kim Archer 918-581-8315