| June 8, 2012

Oklahoma Special-Needs Law Making Its Way through the Courts

On March 27 Tulsa County District Judge Rebecca Nightingale ruled against Oklahoma parents of children with special needs, declaring that the Lindsey Nicole Henry Scholarships for Students with Disabilities Program violates the Oklahoma Constitution.

A spokesman for Attorney General Scott Pruitt expressed disappointment with the trial court’s decision, saying, “the Attorney General’s Office will continue to defend the constitutionality of the Lindsey Nicole Henry Scholarship and its benefits for children with disabilities.”

“This decision is unprecedented,” said Eric Baxter, senior counsel with the Becket Fund for Religious Liberty. “The Oklahoma Supreme Court has been clear for decades that the State can contract with private entities—including religiously affiliated entities—to provide services the State would otherwise provide directly. What the State cannot do is exclude some service providers simply because they are religiously affiliated, which is what the district court’s ruling would lead to.”

State Rep. Jason Nelson (R-Oklahoma City), the author of the Henry Scholarship legislation, said the ruling could have far-reaching consequences. “The judge’s ruling is baffling and will likely impact many state programs affecting everything from preschool to Medicaid.”

State Superintendent Janet Barresi expressed confidence that “the facts of the case will prevail, and this incorrect ruling will be overturned.”

Law professor Andrew Spiropoulos, who serves as OCPA’s Milton Friedman Distinguished Fellow, wrote in The Journal Record:

If the Henry program breaches the wall of separation between church and state, then so does every state-funded program where an individual can choose the provider of the service. If a Medicaid patient receives care at a Catholic hospital or a recipient of a state-funded higher education scholarship attends a church-affiliated university, the school districts’ arguments require that these important and long-standing programs be invalidated. I don’t think that’s what the framers of our constitution had in mind.

“This law benefited children with autism and other conditions and challenges that can make it difficult for them to function in a regular classroom,” added The Oklahoman in an editorial. “These are children, some of whom could receive a better education and more hope for the future with extensive help from specialists who districts often can’t or won’t pay for.”

Interestingly enough, districts often will pay for it. Even before the Henry Scholarships existed, school districts already sent hundreds of special-needs kids to private schools. In other words, when school districts request that public money be sent to private schools, it’s perfectly legitimate. When parents make the request, it’s unconstitutional.

On April 17 Judge Nightingale issued an order allowing the program to remain intact while her decision is being appealed.

“It is unfortunate that the school districts decided to spend their money suing the families of disabled students instead of supporting opportunities for students with disabilities to succeed,” Baxter said. “It’s like suing grandma because she signed up for Medicare.”

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