The Oklahoma State Department of Education (OSDE) has stripped its website of a memo issued by the state attorney general, which warns that the agency has acted illegally in its administration of a state program for children with special needs.

An OSDE spokesperson said the document is shielded from public view by attorney-client privilege.

The Lindsey Nicole Henry (LNH) Scholarships for Students with Disabilities program provides scholarships to students with special needs and foster children, allowing them to attend private schools. The LNH law requires that participating private schools comply with the antidiscrimination provisions of a section of federal law that bars discrimination “on the ground of race, color, or national origin.” Those are the only three categories listed.

However, under the leadership of State Superintendent of Public Instruction Joy Hofmeister, the OSDE drafted new regulations in 2019 that expanded that list to cover nine categories, including “religion” and “sexual orientation.” The additions were made nine years after the program was created.

As a result of those additions, the State Board of Education has not approved the application of Christian Heritage Academy to serve LNH students with one board member explicitly saying a private school cannot require its staff to be “mature Christian teachers” and still participate in the LNH program under the agency’s new regulations.

At the board’s November meeting, the group instead requested a formal opinion from the office of the attorney general on the legality of its regulations.

However, when that decision was made officials at OSDE already had a memo from staff in the office of the attorney general that warned the new regulations are illegal.

That Oct. 21 attorney general memo stated, “You have asked us to analyze whether, in light of the state law, the 2019 rulemaking, the facts, and the Constitution, the Oklahoma Department of Education’s recent actions in relation to Altus Christian Academy and Christian Heritage Academy are legally sound. In our opinion, they are not.”

The memo warned that the State Board of Education and the OSDE are “in grave danger of violating the U.S. Constitution’s Free Speech and Free Exercise protections, as well as the Oklahoma Constitution and the Oklahoma Religious Freedom Act” by imposing the new requirements on participating Christian schools that are not authorized by state law.

The attorney general memo was publicly posted on the OSDE website along with other State Board of Education handouts for the group’s Nov. 12 meeting. However, as of Nov. 17, the document had been removed from the site.

In response to a request for comment, Carrie Burkhart, executive director of communications at OSDE, said, “The memo was removed because it was deemed attorney-client privilege—it was erroneously posted in the first place—and because the October memo already was outdated after subsequent information and conversations with the attorney general’s office.”

The controversy and legal problems created by OSDE’s handling of the Henry scholarship program come as the agency is also under growing scrutiny for allegations of lax financial oversight.

Nearly two dozen state lawmakers have requested that the state auditor perform an investigative audit of the Oklahoma State Department of Education to determine if the agency is failing in its financial oversight of state schools.