By Constitution Staff

On January 19, State Superintendent Janet Barresi issued the following statement in conjunction with a letter sent by Oklahoma Attorney General Scott Pruitt to the superintendents of Tulsa County school districts that have failed to comply with House Bill 3393, the Lindsey Nicole Henry Scholarships for Students with Disabilities:

"Over the past several weeks, I have urged the school districts defying state law to reverse their positions. Attorney General Pruitt and I have consulted on this serious matter. I am pleased that Attorney General Pruitt has now weighed in and taken this action today, bringing the full weight of state authority to bear in this matter. The school districts that have acted in defiance of state law have now been given the chance to do the right thing. They should take immediate action to reverse their positions, and I urge them to move forward quickly."

Early last October, the school boards at Broken Arrow and Jenks voted to violate the Oklahoma law which allows students with disabilities, such at autism or Down's syndrome, to receive scholarships and transfer to schools that specialize in aiding those populations. Bixby, Tulsa Union, Liberty and Owasso schools later followed suit and also refused to abide by the law. On October 19, the Tulsa Public School Board voted to follow the law and provide the special needs scholarships. The board approved six special needs applications, but will not consider future scholarships until the courts make a ruling.

The Lindsey Nicole Henry Scholarships for Students with Disabilities Act was created by House Bill 3393 during the 2010 legislative session. Under the new law, authored by Rep. Jason Nelson (R-Oklahoma City) and state Sen. Patrick Anderson (R-Enid), children with disabilities who have an Individualized Education Program (IEP) qualify for a scholarship to attend any private school that meets the accreditation requirements of the State Board of Education. The law went into effect August 27.

The scholarship program does not require new spending, but merely redirects existing state funds that are currently spent on the student. Other states with similar laws include Florida, Georgia, Utah, Ohio and Arizona. The Florida program has been in place since 1999 and now serves approximately 20,000 students with special needs.

Rep. Nelson issued the following statement after the Attorney General threatened legal action against schools that disobey the law. The AG letter went to the Broken Arrow, Jenks, Tulsa Union and Liberty schools. "I think that the remaining school boards have had more than enough time to change their position in favor of the law and clearly Attorney General Pruitt thinks so, too. It was the stated intention of the school boards to end up in court over House Bill 3393. Judging from the letter from Attorney General Pruitt, it appears that these board members and their superintendents may get their wish -- but for a much different reason than they anticipated."

Nelson said he was hopeful that the four school boards that are currently in noncompliance will revisit their position soon and follow the Tulsa, Owasso and Bixby school boards in reversing the votes they cast last fall. If they do not, I fully support the Attorney General pursuing legal action against the school board members and superintendents to the fullest extent of the law. "This is good news for those parents whose hopes of using the scholarships to place their children in other schools were dashed last fall," said Nelson.

School officials claimed the transfers authorized by the scholarship program would harm their financial standing, but only a small number of students have applied for the scholarships. Although school officials claimed the scholarships would somehow create a financial hardship, the actual scholarship amounts will always be less than what the district originally received from the state. Therefore, if the program would financially harm the schools, it could only mean they are spending less on the students than the state provides in aid.

Most of the schools violating the law are represented by the Rosenstein Fist Ringold law firm, which has been involved in similar failed legal strategies. The firm previously represented schools unsuccessfully suing the state over a charter school law.

Some of the schools claim that the law allows for the use of public money for "sectarian purposes" because nearly all of the private schools approved for scholarships are religious schools. They also maintain that the Legislature cannot fund private education. The legislation has been heralded as a first step toward a wider school voucher system which could allow opportunities for other students. In fact, Tulsa Union School Superintendent Dr. Cathy Burden admitted that is the real issue behind their actions. Burden said she considers House Bill 3393 to be a first step toward a universal voucher system, which she charged was "a scheme to undermine public education in this country."

In his letter to the schools, Attorney General Scott Pruitt explained to the superintendents:

"Laws enacted by the Legislature express the collective will of the People of Oklahoma, are presumed Constitutional, and no executive officer has the right to simply ignore the directives contained in such laws. In this State, only the Courts may authoritatively determine the Constitutionality of our laws. It is the duty of public officers to obey such laws unless and until such laws are determined by Courts to be unconstitutional. Willful neglect or disobedience to performing duties established by Law exposes you and members of your Board of Education to legal liabilities, both official and personal."

Pruitt gave the schools until January 24 to comply or face "legal action" from his office.

House Bill 3393 was one of the ten bills included on the 2010 Oklahoma Conservative Index rating state legislators, with a vote for the bill being the conservative vote. To find how your legislator voted, see the 2010 Oklahoma Conservative Index published in our summer edition, or visit our website: www.OklahomaConstitution.com

UPDATE: After we went to press, Union, Jenks, Broken Arrow and Liberty Schools announced they would institute litigation against Attorney General Scott Pruitt and will seek a declaratory judgment that House Bill 3393 is unconstitutional.