The number of Oklahoma private schools authorized to serve special-needs students through a state scholarship program has increased dramatically since repeal of prior illegal regulations that barred Christian schools from participating.

This month, the Muskogee Seventh Day Adventist Christian Academy became the latest private school to receive state authorization to serve students who are beneficiaries of the Lindsey Nicole Henry Scholarships for Students with Disabilities (LNH) program. The school received final approval during the June meeting of the State Board of Education.

The LNH program provides scholarships to students with special needs and to foster children, allowing them to use tax funds to attend private schools. A share of the per-pupil amount that would otherwise be spent on the education of each LNH recipient in a public school is instead provided to parents to pay for the education of that same child at any approved private school.

As enacted in 2010, the LNH law includes a provision mandating that participating private schools cannot discriminate “on the ground of race, color, or national origin.”

However, during the administration of State Superintendent of Public Instruction Joy Hofmeister, the Oklahoma State Department of Education (OSDE) unilaterally rewrote LNH regulations to also bar discrimination based on sexual orientation and religious affiliation.

The revised regulations effectively required private religious schools who adhere to traditional Christian teaching to nonetheless hire atheists as teachers and/or abandon student code-of-conduct requirements regarding sexuality and marriage, or else forgo serving LNH students.

When news of OSDE’s regulatory changes received publicity in 2020, legal experts warned the agency’s actions could generate successful lawsuits against the State of Oklahoma for violating citizens’ First Amendment rights.

That same year, a U.S. Supreme Court opinion in Espinoza v. Montana Department of Revenue held that Montana government officials could not prevent children who participated in a state tax-credit scholarship program from using their scholarships to attend religiously affiliated private schools.

“We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs,” the U.S. Supreme Court opinion stated, noting that Montana officials had attempted to cut “families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.”

The Oklahoma Supreme Court had also upheld the legality of allowing LNH recipients to use state scholarships at private religious schools, ruling in 2016, “When the parents and not the government are the ones determining which private school offers the best learning environment for their child, the circuit between government and religion is broken” [emphasis in original].

An official opinion issued on Dec. 3, 2020, by the office of then-Attorney General Mike Hunter concluded the Oklahoma State Department of Education’s LNH revisions were illegal. The attorney general opinion stated that “as a straightforward textual matter, private schools that seek to participate in the Henry Program must not discriminate on the basis of ‘race, color, or national origin.’ Nothing else is required … with respect to nondiscrimination.”

Hunter’s opinion also concluded the OSDE rule “misinterprets both federal law and the statute authorizing the Henry Program, and was therefore beyond the authority of the Department to promulgate under the Administrative Procedures Act. Accordingly, the rule is not enforceable to the extent it adds to the requirements set forth in statute.”

After Hunter’s opinion, the State Board of Education voted to amend the LNH regulations to remove the illegal provisions.

Since that time, the number of private schools that can serve LNH students has increased significantly and the total now numbers more than 80 schools. While some private schools added to the LNH program since that time have no religious mission, many do.

In addition to the Muskogee Seventh Day Adventist Christian Academy, 17 other private schools have been approved to serve LNH students since the revocation of the prior illegal restrictions on Christian-school participation.

Schools added to the program include Christian Heritage Academy in Del City, Texoma Autism and Behavior Intervention School in Ardmore, WovenLife in Oklahoma City, Keystone Adventure School & Farm in Edmond, SNU Lab School in Bethany, Mount Olive Lutheran School in Miami, Infinity Generation Generals Preparatory School in Oklahoma City, Stillwater Christian School, St. Mary’s Catholic School in Ponca City, Claremore Christian School, James Caraway Christian Academy in Chickasha, School of St. Mary in Tulsa, Terra Verde in Norman, All Saints Catholic School in Broken Arrow, Tulsa Hope Academy, Cornerstone Christian Academy in Oklahoma City, and Antioch Christian Academy in Oklahoma City.

A new U.S. Supreme Court opinion, issued on June 21 in Carson v. Makin, further highlights the constitutional defects of Hofmeister and the OSDE’s prior regulations barring private religious schools from the LNH program. The Carson case dealt with a Maine state program that allows certain families in areas without a local secondary public school to use state funds for private-school tuition. Since 1981, Maine had limited tuition assistance payments only to “nonsectarian” private schools.

In Carson, the U.S. Supreme Court ruled, “A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”

In a statement, Leslie Hiner, vice president of legal affairs for EdChoice, noted that the U.S. Supreme Court’s multiple rulings have now struck down the legalistic excuses offered to bar student access to religious schools through state programs—primarily the argument that funding should be denied either based on a school’s religious status or because of alleged religious “uses” of public funds.

“In a school choice program, a state cannot prohibit a parent from choosing a private school just because the school is religious,” Hiner said, “and as a result of today’s ruling, a state cannot prohibit a parent from choosing a private school just because the school educates its students in their faith, presents subjects from a faith viewpoint, and trains students to live the values of their faith.”