Becket Fund brief supports parents of children with special needs
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Published: 19-Jun-2012

The Becket Fund for Religious Liberty has filed a legal brief before the Oklahoma state Supreme Court, defending the Lindsey Nicole Henry Scholarships for Students with Disabilities program. 

On March 27, the Henry Scholarships were ruled unconstitutional in a controversial decision by Judge Rebecca Nightingale. 

Opponents have based arguments against special needs scholarships on Oklahoma’s version of the “Blaine Amendment” – a product of an era of anti-Catholic fervor that restricted state revenues going to “sectarian institutions.”

Eric Baxter, the Becket Fund’s senior counsel, contends “Blaine Amendments cannot be used to prevent religious students or schools from participating in State programs that are available to everyone else. The U.S. Supreme Court has made clear that these amendments have ‘a shameful pedigree,’ which the High Court does ‘not hesitate to disavow.’”

Opposition to the Oklahoma program for special needs children has been led by the law firm of Rosenstein Fist and Ringold, on behalf of the Jenks and Union public school districts. The school districts have until June 29 to respond to the Becket filing on behalf of the parents. The litigation began when the two districts sued the parents.

The two school districts sued parents to stop families from accessing the scholarship program, designated for handicapped children who have an individualized education Program (IEP). The Henry Scholarship program did not create new state spending, but allowed parents to access existing funding for special needs children in the educational setting of their choice. 

State Rep. Jason Nelson of Oklahoma City, sponsor of the original Henry Scholarships, has echoed Oklahoma Solicitor General Patrick Wyrick, who argued to the district court that the rationale brought by opponents makes it possible for the government to sue Medicaid patients who are treated at Catholic-affiliated hospitals.
The new Becket Fund legal brief points out that of five families sued by school districts, three sent their children secular private schools, while two used private religiously-affiliated schools.

In a statement on Monday (June 18) from his office in Washington, D.C., Baxter said, “This shows that that the scholarships are religion neutral. Oklahoma is simply helping kids with disabilities get the education they need by giving parents choices.”

The Becket Fund lawyer argued that excluding religious schools from lists of acceptable institutions for exercise of parental choice for families with special needs students would be impermissible. 

Becket notes families accessing the scholarships include parents like Stephanie and Russell Spry, who accessed the scholarship because their won was being “warehoused” in a local public school. 

Becket filed with Andrew Lester of Edmond as a co-counsel. Lester is a name partner with the firm of Lester, Loving & Davies. 

The Becket Fund for Religious Liberty is described as “a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. The Becket Fund has a 17-year history of defending religious liberty for people of all faiths. Its attorneys are recognized as experts in the field of church-state law, and they recently won a 9-0 victory against the federal government at the U.S. Supreme Court in Hosanna-Tabor v. EEOC.”

On April 18, Judge Nightingale ruled the Henry Scholarships would stay in force while supporters appeal her decision. 

The Becket Fund filed the state High Court brief with co-counsel Andrew Lester of Lester, Loving, & Davies in Edmond, Oklahoma. Several other parties, including Oklahoma State Representative Jason Nelson, the original sponsor of the bill, have indicated that they will file amicus briefs in support of the parents. School districts have until June 29 to respond to the parents’ arguments. 

The Tulsa decision stands in contrast to the January 13, 2012 decision of Indiana Superior Court Judge Michael D. Keele, who disagreed with opponents of the Hoosier State’s school choice legislation. 

 Keele upheld that that state’s law, noting that to prohibit it “would cast doubt on the validity of a host of other longtime religion-neutral programs whereby taxpayer funds are ultimately paid to religious institutions by way of individual choice.” (Teresa Meredith et al. vs. Mitch Daniels, et al. Cause No 49DO7-1107-PL-025402, January 13, 2012)

 Judge Keele pointed to a higher education program that allows students to use state scholarships to attend private religious schools in post-secondary years. 

 In another case touching school choice, Arizona Superior Court Judge Maria del Mar Verdin ruled, in the case of “Sharon Niehaus, et al. v. John Huppehthal, et al.” that disbursements of scholarships to parents exercising choice did not violate that state’s “aid clause.” (Superior Court of Arizona, Maricopa County CV 2011-017911, January 25, 2012)

The scholarship program was signed into law in June 2010 by Governor Brad Henry, a Democrat.

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