Legislation that would prevent private religious schools from having to abandon their religious tenets if they participate in a state program for children with special needs has won passage in the Oklahoma House of Representatives.

The Lindsey Nicole Henry 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 currently 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, in recent years the Oklahoma State Department of Education (OSDE) revised the program’s regulations, claiming an executive order issued during the administration of former President Bill Clinton effectively rewrote federal law and expanded the anti-discrimination provisions to include several other categories, including sexual orientation and religious affiliation. That effectively required private religious schools that accepted LNH students to hire atheists and abandon student code-of-conduct requirements based on historic Christian teachings about sexuality and marriage.

The OSDE regulations led the State Board of Education initially to reject the application of Christian Heritage Academy to serve LNH students.

However, an official opinion issued last year by the office of Attorney General Mike Hunter concluded the Oklahoma State Department of Education acted illegally when it imposed those restrictions on the LNH program. Hunter’s opinion noted that “federal statutes cannot be amended or expanded by Executive Order” and also said the text of state law “is clear” because the federal law referenced prohibits discrimination only on the basis of “race, color, or national origin.”

“No other protected classes are mentioned and the text has remained unchanged since the creation of the Henry Program,” Hunter’s opinion stated. “Thus, 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.”

Senate Bill 126, by Sen. Julie Daniels and Rep. Ryan Martinez, amends Oklahoma law to remove the reference to federal statute and instead explicitly states that schools participating in the LNH program cannot discriminate “on the basis of race, color and national origin.”

Democratic lawmakers attempted to amend the bill. Those amendments would have barred Christian and other religious schools from requiring that staff be religiously devout or from imposing student rules based on longstanding orthodox Christian teachings on sexual relationships outside of marriage.

An amendment offered by House Minority Leader Emily Virgin, D-Norman, would have explicitly tied the LNH program to the anti-discrimination categories of the Clinton executive order previously cited by OSDE staff. The amendment was rejected on a vote of 63-13.

A second amendment offered by Rep. Melissa Provenzano, D-Tulsa, would have made it illegal for private schools to expel an LNH student based on violation of the school’s rules. That amendment was rejected on a voice vote.

Democrats argued anti-discrimination categories should be expanded, although the new categories promoted would effectively prevent LNH students from attending the majority of private schools in Oklahoma.

“Since this executive order is still in the books, why aren’t we using that language in this bill?” asked Rep. John Waldron, D-Tulsa.

Martinez noted the LNH law has never been tied to an executive order.

“We’re just decoupling this bill from the federal code,” said Martinez, R-Edmond. “We don’t know how that law will change. This will make it so it’s very clear in Oklahoma statute.”

The Oklahoma Supreme Court, in a unanimous 2016 decision, held the LNH scholarship program was constitutional and specifically noted the program does not benefit private schools, but individual students.

“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,” the justices stated (emphasis in original).

Last year the U.S. Supreme Court similarly upheld the constitutionality of state government programs that allow students to attend private schools, including schools that have religious affiliations. The court opinion stated, “We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.”

SB 126 passed the Oklahoma House of Representatives on a 74-21 vote. It now returns to the Oklahoma Senate for further consideration.