| July 19, 2012

Robert Henry says nixing special-needs scholarships could have far-reaching impact

“Opposition to state scholarships for children with special needs may have a far-reaching, negative impact,” the state’s largest newspaper editorialized this week (“'Win' in special-needs lawsuit would harm many Oklahoma students”).

The ongoing court battle centers on a lawsuit filed by the Jenks and Union school districts against parents of children with special needs who got aid under the Lindsey Nicole Henry Scholarships for Students with Disabilities Act. The law allows the use of state funds (already designated for a child's education) to pay for tuition at a private school that caters to those with special needs.

Jenks and Union officials argue the scholarship program amounts to government support of religion because some participating schools have religious affiliations. The case is proceeding through the courts on appeal and Oklahoma City University President Robert Henry is among those seeking to argue in support of the law.

Robert Henry, of course, is one of the most respected legal minds in Oklahoma. A former Oklahoma attorney general, Henry was nominated by President Bill Clinton to the Denver-based U.S. Court of Appeals for the Tenth Circuit, where he served for 16 years. The Oklahoman continues:

In his request, Henry's attorney notes that students at OCU, which is affiliated with the United Methodist Church, are eligible to participate in the Oklahoma Tuition Equalization Grant program, a state scholarship program for students of limited means. OTEG recipients' average household income was $24,430 in the 2010-11 academic year (for dependent students). That year, 2,214 low-income students attending 13 Oklahoma colleges with religious affiliations (including the University of Tulsa) got $3.8 million in OTEG scholarships.

Henry's request to file an amicus (“friend of the court”) brief states, “Amicus is deeply interested in the outcome of this litigation because the structure of the OTEG program is nearly identical to that of the Lindsey Nicole Henry Scholarship Program for Students With Disabilities ... Both programs provide state-funded scholarships to eligible students who attend private institutions, a substantial majority of which are religiously-affiliated institutions. The central purpose of both programs is to provide essential services to students by facilitating, in a world of scarce resources, the use of all appropriate state educational institutions, public or private, to provide students the services they require. Both programs rely on students and parents to choose the institution the student will attend and then apply to the state for scholarships to be applied to the tuition charges at the institutions they have chosen.”

If courts strike down the special-needs scholarship program, Henry's request says, “amicus is justifiably concerned that invalidation of the Henry scholarship will threaten the legal viability of the OTEG scholarship.”

Brian McCall, a law professor at the University of Oklahoma, also thinks the Henry Scholarship program is constitutional. In a column that appeared the following day in The Oklahoman (“Making disabled children victims of ideology”), Professor McCall noted:

Several Oklahoma court decisions have sanctioned interactions and transactions between the government and churches for legitimate public purposes. The state can buy property, and pay for services rendered, from churches and religious organizations.

When the state paid to entrust the care of orphaned children to an institution affiliated with a church, the Oklahoma Supreme Court found the transaction unobjectionable. Although the result is that money passes from the government to a church or religious institution, the court, as well as Oklahoma's attorney general applying the case law, has realized such a fact didn't mean the government was setting up and funding a state-controlled church.

I urge you to learn more about the Henry Scholarships, and to join us in Edmond July 31 for the premiere of a very powerful 30-minute documentary showing how the Henry Scholarships are changing the lives of Oklahoma families. After the film, I will host a panel discussion on the future of the scholarships with law professor Andrew Spiropoulos and state Rep. Jason Nelson.

Brandon Dutcher can be reached at or

Loading Next