In ruling on lawsuit against parents brought by Union and Jenks public schools, Tulsa judge kills Oklahoma’s special needs scholarship program
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Published: 27-Mar-2012

Tulsa, Oklahoma – A district judge has struck down Oklahoma’s Lindsey Nicole Henry Scholarships, a program designed to assist special needs children. 

Judge Rebecca Nightingale today (Tuesday, March 27) granted a request for summary judgment against the parents of special needs children brought by the Jenks and Union Public school Districts. 

Jerry Richardson of Rosenstein Fist and Ringold argued the case, and two other lawyers for the controversial law firm assisted him in preparing for the case. 

Representing the parents of special needs children was the Becket Fund’s Eric Baxter and Tulsa attorney Lance Freije. Baxter and Freije told CapitolBeatOK parents of special needs children in the two districts plan to appeal the decision.

This afternoon, attorneys said they would seek a stay of the judge’s decision – delivered verbally this morning -- to allow an appeal to the state Supreme Court.

Oklahoma Solicitor General Patrick Wyrick, from the office of Attorney General Scott Pruitt, argued for the constitutionality of the historic legislation, passed with bipartisan majorities and signed into law by former Governor Brad Henry, a Democrat. 

State Rep. Jason Nelson, an Oklahoma City Republican who wrote the law, said in a statement sent to CapitolBeatOK, “I will keep fighting for the families and fighting to uphold this very necessary law. I support an appeal to the Supreme Court and a motion for a stay of the judge’s ruling pending an appeal. 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.”

Nelson and other critics of the decision are concerned it might have far-reaching implications – a point made by Wyrick in his arguments to the court before Judge Nightingale’s ruling. 

Nelson said, “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.”

The two school districts sued parents to stop them from accessing the scholarship program, funded with taxpayer money designated for handicapped children who have an individualized education Program (IEP). Nelson echoed Wyrick, who argued to the court the rationale brought by opponents makes it possible for the government to sue Medicaid patients who are treated at Catholic-affiliated hospitals.

Nelson argued,  “This is a horrible precedent. It’s like suing grandma for using Medicare. I will keep fighting to defend parents’ rights to do what is best for their children. This is the standard everywhere else in state government. This ruling now calls into question other critical programs in health care, foster care, prison ministries, preschool and higher education tuition grants.”

Nelson strongly supported the individuals sued by the two districts, saying, “These parents have displayed great courage while going through an unprecedented legal assault by two government school districts. They have not backed down, and neither will I.”
 
Nelson praised Pruitt, the Becket Fund (a national group supporting education choice) and Bob Latham of the School Choice Coalition for defending the parents of special-needs children. 

Nelson thanked the Becket Fund for coming to the aid of the parents of special-needs children, as well as Attorney General Scott Pruitt, who defended the law, and Bob Latham, local council for the School Choice Coalition. He also thanked state Sen. Patrick Anderson of Enid, who co-authored the law, and the bipartisan majority of legislators who in 2010 “supported these parents.”

Nelson concluded today’s statement, saying, “Most of all, I want to thank former Governor Brad Henry and his family for supporting the program and allowing the law to be named for Lindsey.”

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 rules, 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)

While the exact fact situations in the other states are in some respects distinguishable from the litigation that came before Judge Nightingale in Tulsa, arguments were made this morning referencing each case and drawing parallels to the Oklahoma law, especially in reference to the Indiana case. 

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