Oklahoma special-needs law making its way through the courts

April 2, 2012

Last week 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.”

State Rep. Jason Nelson (R-Oklahoma City), the author of Lindsey’s Law, said the government suing parents for using the scholarships is “like suing grandma for using Medicare.” He believes 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,” Nelson said. “The judge ruled on the merits without comment, perhaps because her decision is indefensible.”

State Superintendent Janet Barresi also weighed in: “While I am disappointed in today’s district-level ruling and the undue stress and burden it has placed on families with special-needs children, I also understand this is not the end of the story. I fully anticipate these families will move forward quickly with an appeal to the Oklahoma Supreme Court. I am confident the facts of the case will prevail, and this incorrect ruling will be overturned.”

Law professor Andrew Spiropoulos also believes the ruling is incorrect. Dr. Spiropoulos, who serves as OCPA’s Milton Friedman Distinguished Fellow, wrote:

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.

The state’s largest newspaper weighed in with a lead editorial on Friday (‘Judge’s rejection of special-needs scholarship law not a victory for public education’). “This law benefited children with autism and other conditions and challenges that can make it difficult for them to function in a regular classroom,” The Oklahoman noted. “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.)

Attorneys for the parents indicated they will file a motion to stay the judge’s order pending appellate review. CapitolBeatOK editor Patrick McGuigan, who was in the courtroom for the oral arguments and the judge’s ruling, discusses the case here: