May it please the court: taxpayer dollars have long been used in ways that support the education of children in private institutions. Some such programs even operate with the approval of powerful local public school superintendents.

Over the past decade, the state of Oklahoma has sent millions of dollars to Heartspring Inc. of Wichita. Three years ago, Curtis Killman of the Tulsa World reported that in FY 2012, some $2 million was headed to Heartspring: “Seven separate contracts, each from $286,320 to $287,320 in value, were with Heartspring. … The contracts were requested by Oklahoma school districts in which the children live to pay for living and educational services for students.”

One instance is detailed in a May 27, 2011 memorandum from Misty Kimbrough, assistant state superintendent for special education services, to Superintendent David Pennington of the Ponca City Public School District. The memo reads in relevant part:

Ponca City Public School District will be responsible for paying 50 percent of the total out-of-state cost for the FY 2012 residential placement of [name withheld] at Heartspring in the amount of $143,160.00 and will be responsible to contract directly with Heartspring for this amount. Additionally, the LEA [local education agency] will continue to be responsible for funding (via payment to the OSDE) in the amount of one teacher's salary (based on the LEA's average teacher salary the preceding year) and reimbursement to parents/guardians for reasonable and necessary travel expenses associated with the out-of-state residential placement.

State education practice included a pool of $2.5 million to reimburse local districts for “excessive costs of high need students.” The state could authorize payments for out-of-state placement of students. The policy went into effect during the last year of former Superintendent Sandy Garrett's administration.

The contention made is that Heartspring can participate because it is a non-religious institution. That is a distinction without a difference. As I have noted elsewhere, millions of public education dollars flow to private vendors or entities every day. That is a fact, not an opinion. Public dollars flow to private schools all the time, often with approval of public school officials.

Allowing tax dollars to follow students should be a given, not a controversy. Yet Superintendent Pennington and others want to crush the Lindsey Nicole Henry Scholarship program for special-needs children, because some beneficiaries will choose (and have chosen) religious schools.

Oklahoma City University law professor Andrew Spiropoulos reflects that attacks on the Henry scholarship program, which was enacted with bipartisan support and signed into law by a Democratic governor, fail on many levels. Last year Spiropoulos applauded an Indiana state Supreme Court ruling upholding an expansive program that includes support for private school placements.

The Indiana High Court wrote that the Hoosier program’s “expenditures do not directly benefit religious schools but rather directly benefit lower-income families with school-children by providing an opportunity for such children to attend non-public schools if desired.” Further, “the prohibition against government expenditures to benefit religious or theological institutions does not apply to institutions and programs providing primary and secondary education.”

Spiropoulos, who also serves as the Milton Friedman Distinguished Fellow at OCPA, remarks: “[T]he court held that ‘the proper test for examining whether a government expenditure violates’ the constitutional prohibition against aid to religious institutions ‘is not whether a religious or theological institution substantially benefits from the expenditure, but whether the expenditure directly benefits such an institution. To hold otherwise would put at constitutional risk every government expenditure incidentally, albeit substantially, benefiting any religious or theological institution.’”

In an email responding to questions I sent to the Ponca City school district, Superintendent Pennington confirmed that beginning in the 2007-08 school year, a district student with an IEP (Individualized Education Plan) was placed at Heartspring. From 2008-2011 the district paid $173,891.50 (equivalent to a teacher's salary for those years) with the remaining costs paid by the state (using federal funds).

Beginning in FY 2012, the district's “IEP team” sought to end the placement and return the student to local schools. The family opposed that decision. Litigation resulted. The family prevailed.

Then, from FY 2012-14 the district spent $424,026.09 on the placement; of that, $188,274.41 was reimbursed by the state, using federal funds.

In response to questions, Pennington said trying to link the local situation to the benefit flowing from a Lindsey Nicole Henry Scholarship “is trying to compare apples to oranges.” Nonetheless, he was responsive in part, saying, “I support the decisions made by IEP teams for special needs students.”

Pennington offered to continue the discussion, which I intend to do.

Recently, I asked Prof. Spiropoulos to comment on school superintendents who favor districts being able to choose private-placement options, but oppose giving those choices to parents. He said:

The problem with this kind of hypocrisy is that it is an example of school officials who care more about themselves and their needs than the needs of children. They're glad to take advantage of such choice programs as this when it is convenient for them or for their districts, but as soon as they reach a conclusion that they are “losing” too many students, or too much power, they move to oppose the very same programs.

They do this not for good reasons but to benefit themselves and their district’s bottom lines. The most important lesson is that their opposition to school choice is not a matter of principle but a matter of power.

The real question is not whether children can benefit from provision of special services in private settings. They obviously can. The question is who decides – parents and students (the beneficiaries) or bureaucrats and superintendents.

[Guest blogger Patrick McGuigan (M.A. in history, Oklahoma State University) is a certified public school teacher. The editor of CapitolBeatOK, he is a weekly commentator on NEWS 9, the CBS affiliate in Oklahoma City. He is the editor of seven books on legal policy, and the author or co-author of three books, including Ninth Justice: The Fight for Bork.]