By Constitution Staff

On February 16, the Oklahoma Supreme Court upheld a state program that provides scholarships to disabled children. While the court decision directly affects those who participate in the Lindsey Nicole Henry Scholarships for Students with Disabilities Program, it has broader implications concerning potentially directing state education funds to sectarian schools. Opponents of the program centered their lawsuit on a section of Oklahoma's Constitution which prohibits the use of state money or property to aid religion. Known as the Blaine Amendment, this was the same section of the state constitution that the same court decided the Ten Commandments Monument had to be removed from the State Capitol grounds last year.

Article 2, Section 5, of the state constitution was cited by the high court in its controversial decision on the monument. The Blaine Amendment was proposed in 1875 out of concern over the rising tide of Roman Catholic immigration into the country. Congressman James G. Blaine authored the amendment which passed the U.S. House of Representatives 180-7, but failed the required two-third vote in the Senate. However, many states opted to include a version of the "Blaine Amendment" in their state constitutions. Oklahoma, which entered the Union in 1907, was one of what eventually included 38 states which incorporated some variation of the wording in their fundamental law.

Oklahoma's version of the Blaine Amendment reads, "No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such."

In its decision on the education scholarships, the justices of the state's highest court settled this fundamental issue. "The question presented is whether this program offends the "no aid' clause of the Oklahoma Constitution, Article II, Section 5. We hold that it does not," the justices said in their opinion. In its reversal of a lower court ruling, the state's highest court found that since parents direct the use of the scholarship funds, there is no violation of the constitutional prohibition against state support of religion. "Because the parent receives and directs the funds to the private school, sectarian or non-sectarian, we are satisfied that the state is not actively involved in the adoption of sectarian principles or directing monetary support to a sectarian institution through this scholarship," said the court.

Named after the late daughter of former Oklahoma Gov. Brad Henry, the Lindsey Nicole Henry Scholarships for Students with Disabilities Program was created by House Bill 3393 during the 2010 legislative session. Under the law, authored by Rep. Jason Nelson (R-Oklahoma City) 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 in the public schools. 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.

"I'm relieved and excited for the students and families who now have certainty about the program. I know that they have worried that they would wake up to learn that the law had been struck down but they don't need to worry any longer. The nearly six year old question has been answered," said Rep. Nelson. "We have always known that we are on the right side of the law, and this ruling today confirms what we have always believed. It is a wonderful program that hurts no one but one that has changed lives for the better. Some parents have told me that it saved their child's life. They've told me that their children were bullied without mercy at school and nothing was being done to stop it. Some of them even feared their children would take their life as a result."

This was the second time that the state's highest court decided in favor of the scholarship program. The latest lawsuit began in October 2013 when about a dozen supporters of public schools including retired and current superintendents and teachers, a state senator, and a retired judge tried to stop the program. In August of 2014, Oklahoma County District Court Judge Bernard Jones ruled in favor of the plaintiffs and against the program. State Attorney General Scott Pruitt appealed the lower court ruling and the judge's order was stayed pending the appeal, allowing the program to continue to help disabled students while the matter awaited a decision by the high court.

Over fifty private schools in the state have been approved to accept students with the scholarships, and most are religious schools. Based on the latest information for the current school year, about $2.5 million is being paid to provide about 500 scholarships. This amount is less than what the state would have expended if the students had remained in the public schools.

"This program saves money for the public school system, while benefitting children with special needs by allowing them to select the educational options that best suits them. This is a victory for students with disabilities across our state and for their families," said Governor Mary Fallin. "This also is a victory for education in Oklahoma. All students learn differently, so each of them should have the opportunity to attend a school that offers the best environment for success. This can be accomplished through Education Savings Accounts, which I encourage legislators to approve this session, while still protecting school finances."

The decision was good news for the proponents of state-funded Education Savings Accounts or ESAs. Two bills were filed in the current legislative session which would allow parents to use state funds to send their children to private schools, including religiously affiliated schools. "This is a very important step forward for ESAs," said Renee Porter, executive director of ChoiceMatters For Kids. Porter said the decision should remove the argument that the use of education savings accounts at religiously affiliated schools violates the state Constitution.

Several public opinion polls have demonstrated strong support for ESAs. A SoonerPoll released in March showed that 56.3% of Oklahoma voters supported pro-ESA legislation. An earlier poll by CHS & Associates found 55% of Oklahoma voters supported ESAs. But, even with the support of the governor, and a push by the state Republican Party, the Republican leaders in both the House and Senate prevented a vote on the two ESA bills -- Senate Bill 609 and House Bill 2949 -- by the March 10 deadline to have a vote in the respective chambers..

House Speaker Jeff Hickman and Senate President Pro-Tempore Brian Bingman announced that neither the House nor Senate would be voting on the separate measures. "The focus of this effort has been, first and foremost, to find solutions for the children who desperately need better opportunities and to know someone cares," said Hickman. "The desire to improve student outcomes and empower parents without harming our public schools will be the goal we continue to work toward in the future." Bingman praised the efforts of Senator Clark Jolley (R-Edmond), the author of the Senate bill. "I appreciate Senator Jolley's efforts on SB 609. He's worked tirelessly on this issue for years and deserves credit for his efforts regardless of where you stand on the issue. This conversation is an important one that shouldn't be forced by legislative deadlines. It's my hope that further work and conversation on this issue would result in a compromise solution."

Hickman and Bingman, both of whom are term-limited and cannot run for reelection, pledged that both chambers will continue working on the issue, building consensus and developing proposals. It is believed that behind the scenes, many Republican legislators were fearful of opposing the public education establishment and being labeled as "anti-education" in an election year. Governor Fallin responded to the announcement saying, "I appreciate legislative leaders for continuing the conversation on Education Savings Accounts. . It's important to give low-income parents the ability to determine the best educational opportunities for their children. All students learn differently and should have the opportunity to attend a school that offers the best learning environment for each student to be successful. I look forward to working with the House and Senate to develop effective legislation on ESAs."

Rep. Nelson, the author of HB 2949 said, "While I am deeply disappointed that ESA legislation in the House and Senate will not be voted on by the deadline today, I want parents to know I, and many others, will continue to fight for their rights and improved educational opportunities for their children. Unfortunately, the misinformation campaign from the educational establishment continues. ESAs would give more options to more parents and their children AND it would increase per pupil funding for students in our public schools helping teachers in the classroom."

Similar to the Henry Scholarship's, the ESA proposals would allow a portion of the state funds currently paid to local public schools to instead go to a savings account to be used by parents to educate their children in private schools. While the specific amounts that would be available varied between the two bills, the maximum amount would not exceed 80 percent of the funds provided by the state for each student. One of the bills provided a sliding scale which reduced the amount based on the parents income. Since the bills would only allow a portion of the current funds expended on the students to go to an ESA, the remaining funds would be available to increase the support of the students who remain in the pubic schools. Any funds remaining in the ESAs after completion of high school could be used for college.

House Bill 3393, the Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act, was one of the ten bills included on the 2010 Oklahoma Conservative Index rating state legislators. A vote for the bill was the conservative vote. To find how legislators voted on the bill, see the 2010 Oklahoma Conservative Index at our website: www.OklahomaConstitution.com