By Constitution Staff

On March 27, Tulsa County District Judge Rebecca Nightingale ruled against Oklahoma parents of children with special needs, declaring that the Lindsey Nicole Henry Scholarships for Students with Disabilities Program violated the Oklahoma Constitution. A spokesman for Attorney General Scott Pruitt expressed disappointment with the court's decision, saying, "the Attorney General's Office will continue to defend the constitutionality of the Lindsey Nicole Henry Scholarship and its benefits for children with disabilities."

The parents had sued the Jenks Public Schools and Union Pubic Schools in Tulsa County over the denial of the scholarships to their children. The school districts counter-sued, challenging the validity of the law. The school districts argued that the law violates Article II, Section V of the Oklahoma Constitution. That provision prohibits the direct or indirect use of state funds to benefit a sectarian institution.

State Superintendent Janet Barresi said: "While I am disappointed in today's district-level ruling and the undue stress and burden it has placed on families with special-needs children, I also understand this is not the end of the story. I fully anticipate these families will move forward quickly with an appeal to the Oklahoma Supreme Court. I am confident the facts of the case will prevail, and this incorrect ruling will be overturned."

Brandon Dutcher, vice president for policy at the Oklahoma Council of Public Affairs (OCPA), "The fact that the government can use taxpayer dollars to sue law-abiding citizens -- especially the parents of special-needs children -- is nothing short of appalling, and should be of great concern to all Oklahomans."

But, Rep. Ed Cannaday (D-Porum), supported the decision, "I commend Judge Nightingale on this decision. The Constitution's mandate is clear, and I think that law puts us one step closer to a voucher system that disfavors public education."

State Rep. Jason Nelson (R-Oklahoma City), the House author of the Law, noted that the judge's ruling could have far-reaching consequences for Oklahomans. Nelson said that under the judge's ruling, it would be possible for Medicaid patients to be sued for being treated at a Catholic hospital. "This is a horrible precedent," Nelson said, "This ruling now calls into question other critical programs in health care, foster care, prison ministries, preschool and higher education tuition grants." Nelson added, "The judge ruled on the merits without comment, perhaps because her decision is indefensible."

The Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act was created by House Bill 3393 during the 2010 legislative session. Under the law, authored by Rep. Nelson and state Sen. Patrick Anderson (R-Enid), special-needs students, such as those with Down syndrome or Autism, 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 27,2010. The scholarships come from the money already designated for the education of those children. It just gives the parent a choice as to where that money can be best used for the benefit of their child.

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.

In October 2010, the school boards at Broken Arrow and Jenks voted to ignore the law. Bixby, Union, Liberty and Owasso schools later followed suit and also refused. On January 19, 2011, State Superintendent Janet Barresi issued a statement in conjunction with a letter sent by Oklahoma Attorney General Scott Pruitt to the superintendents of the defiant school districts, instructing them to comply with the law.

Although school officials claimed the scholarships would somehow create a financial hardship, the actual scholarship amounts will always be less than what the district receives 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.

The schools involved in the lawsuit 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 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. 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."

Rep. Nelson praised the parents of the special-needs students for staying strong. "These parents have displayed great courage while going through an unprecedented legal assault by two government school districts," Nelson said. He thanked the Becket Fund for coming to the aid of the parents, as well as Attorney General Scott Pruitt, who defended the law, and Bob Latham, local council for the School Choice Coalition. He thanked state Sen. Patrick Anderson (R-Enid), who co-authored the law, and all legislative colleagues "who supported these parents." He also thanked former Gov. Brad Henry who signed the bill into law and his family for supporting the program and allowing the law to be named in honor of Henry's daughter Lindsey, who died at seven months of age due to complications from a rare genetic disorder. Lindsey Nicole was the twin of the Henry' oldest daughter, Leah.

On April 18, Judge Nightingale issued a stay of her ruling while it is being appealed. Rep. Nelson said the judge's decision to allow the program to continue during the appeal was the right decision: "I know the decision by the judge to grant a stay comes as welcome news to the parents and students who are currently benefitting from the law. I look forward to the Oklahoma Supreme Court taking up the appeal of Judge Nightingale's ruling where I believe it will be overturned. The law is clearly constitutional if numerous similar state programs are any indication. Opposition to this law is parochial and political -- not constitutional."

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 legislators voted on the bill, see the 2010 Oklahoma Conservative Index at our website.