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School voucher law ruled unconstitutional by Tulsa district judge, Tulsa World, 3/28/12

posted Mar 28, 2012, 4:16 AM by Bill Duncan
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BY KIM ARCHER World Staff Writer
Wednesday, March 28, 2012
3/28/2012 3:40:53 AM

A Tulsa district judge Tuesday struck down a law allowing state funds to be used for private-school tuition for special-needs students, ruling it violates the Oklahoma Constitution.

"As the court, I wrestled with each position. It is not an easy decision," Judge Rebecca B. Nightingale said as she issued her opinion.

The Lindsey Nicole Henry Scholarships for Students with Disabilities Act was signed into law in June 2010. Under the law, the state sets aside public education monies to fund a portion of students' private-school tuition.

Nightingale's opinion sets the course for the lawsuit to move forward through the appeals process and potentially to the Oklahoma Supreme Court.

"We feel totally justified at this point that we have fought a battle for all public education that needed to be fought, and we're very pleased with the outcome today," Union Superintendent Cathy Burden said.

Last September, the Union and Jenks school districts countersued the parents of six special-needs children to challenge the constitutionality of law. They said it violated the state constitution's prohibition against sending public dollars to private, sectarian institutions.

"The judge clearly struggled with this issue, and we think she got it wrong," said the parents' attorney, Eric Baxter, who is with the Becket Fund for Religious Liberty in Washington, D.C.

The nonprofit group is providing legal representation to parents free of charge.

Baxter said he plans to appeal the ruling and expects the case will reach the Oklahoma Supreme Court. He will file a motion for a stay to keep the law intact until the appeals process is completed and a final ruling is rendered.

"My clients are very disappointed with the outcome of the case. They worked with the school districts for a long time and found they just didn't have the resources," Baxter said. "The state scholarship fund provided them an opportunity to find a school that could meet the needs of their children."

He argued before the judge that the state program is neutral, meaning any private school can participate in it regardless of whether it is religious or non-religious.

But Jerry Richardson, the school districts' attorney, noted that of the 40 private schools approved to participate in the scholarship program, only two were not affiliated with a church or religion.

He also argued that the law doesn't place restrictions on what the private schools may do with the state funding.

"If the religious institution wants to spend every dollar on proselytizing, the Act doesn't address this," Richardson said.

On behalf of the state, Oklahoma Solicitor General Patrick Wyrick presented oral arguments in support of the law.

"There is nothing about this scholarship act that affects the system of public schools," he said. "Suing these parents for using the law is like suing grandma and grandpa for using Medicaid."

However, Nightingale ruled that the school districts' had legal standing - meaning they were able to show they were harmed by the law - to initiate the lawsuit.

"The Oklahoma Supreme Court has decided that school districts have standing to protect their funding," Richardson said.

HB 3393 timelineJune 2010: Lindsey Nicole Henry Scholarships for Students with Disabilities Act, or HB 3393, is signed into law.

Fall 2010: Broken Arrow, Jenks, Union, Tulsa and Liberty school boards vote not to process the scholarships.

Jan. 18, 2011: Oklahoma Attorney General Scott Pruitt threatens legal action against those school districts and individual board members if they fail to comply with the law within the week.

Jan. 24, 2011: Union, Jenks, Broken Arrow and Liberty school districts announce that they will sue Pruitt over the constitutionality of the law. They also vote to process scholarships under the law until a decision on its constitutionality is made.

April 25: Twenty parents sue Broken Arrow, Jenks, Union and Tulsa school districts, alleging that their special-needs children were denied private school scholarships in 2010-11. Liberty Public Schools is not named in the lawsuit.

May: The state Legislature passes HB 1744, which transfers responsibility for administering the scholarship program from the districts to the Oklahoma State Department of Education. It took effect Aug. 26.

July: In light of that legislation, federal Chief Judge Claire Eagan grants the parents a stay so they can pursue "administrative remedies" through the state Education Department. Eagan also invites the school districts to file their challenge of HB 3393's constitutionality in state court, saying it would be a "better means of resolving the controversy between the parties."

Aug. 26: Pruitt asks the state Auditor's Office to investigate whether the Broken Arrow, Jenks, Liberty, Owasso, Tulsa and Union school districts complied with the law in 2010-11.

Sept. 2: Jenks and Union school districts file a countersuit in state court to challenge the constitutionality of the Lindsey Nicole Henry Scholarships for Students with Disabilities Act on behalf of all school districts. Their suit names the parents of three students in each district who participated in the federal lawsuit against the schools.

Nov. 3: A federal lawsuit filed against the Broken Arrow, Jenks, Tulsa and Union school districts by a group of parents alleging that their special-needs children were denied private school scholarships was dismissed at the parents' request.

March 27: Tulsa District Judge Rebecca B. Nightingale struck down the law, ruling it is unconstitutional. Opposing attorneys said they would immediately file a motion for a stay to keep the law intact until the appeals process is complete.

What others are saying"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."

- State Superintendent of Public Instruction Janet Barresi



"I commend Judge Nightingale on this decision. The Constitution's mandate is clear, and I think that law puts us one step closer to a voucher system that disfavors public education. I am glad to see that the legal process is working in this case to invalidate a law that is part of the Republicans' war on public education. I have often stated that privatization of education benefits the select few, and not all of our citizens."

- State Rep. Ed Cannaday, D-Porum

"I will keep fighting for the families and fighting to uphold this very necessary law ... The strong reason we needed this law in the first place still stands - to help families of special-needs students who are not being served by public schools.

"The judge's ruling is baffling and will likely impact many state programs affecting everything from preschool to Medicaid. The judge ruled on the merits without comment, perhaps because her decision is indefensible."

- State Rep. Jason Nelson, R-Oklahoma City, co-author of the Lindsey Nicole Henry law

Original Print Headline: Judge strikes down school voucher lawKim Archer 918-581-8315
kim.archer@tulsaworld.com
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