Special needs law to remain in force while controversial ruling is appealed
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Published: 18-Apr-2012

A Tulsa district judge today (Wednesday, April 18) issued an order leaving a special needs scholarship program in effect while advocates for handicapped children prepare an appeal of her controversial ruling that the program is unconstitutional

Judge Rebecca Nightingale ruled the historic Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act will stay in force while supporters of the program appeal her ruling.

Eric Baxter, senior counsel at the Becket Fund for Religious Liberty, said in a statement sent to CapitolBeatOK, “We are pleased the students will continue learning in an environment that can address their needs. However, it is unfortunate that the school districts decided to spend their money suing the families of disabled students instead of supporting opportunities for students with disabilities to succed. It’s like suing grandma because she signed up for Medicare.” 

Baxter argued the case before Judge Nightingale, facing opposing counsel from Tulsa’s powerful Rosenstein, Fist and Ringold law firm. 

In a verbal ruling without commentary or analysis, Judge Nightingale last month ruled for the Jenks and Union public school districts, whose lawyers had assailed the scholarship program. The scholarships were first enacted in 2010 with bipartisan support. The legislation was signed into law by then-Governor Brad Henry, a Democrat.

The law allows children with specified disabilities to have tax resources follow them to the school of their parents’ choice. Baxter characterizes the law as “a win-win situation. The scholarships meet pressing needs without imposing additional costs on the state.” 

Baxter termed Judge Nightingale’s March 27 edict “unprecedented. The Oklahoma Supreme Court has been clear for decades that the State can contract with private entities – including religiously-affiliated entities – to provide services the State would otherwise provide directly. What the state cannot do is exclude some service providers simply because they are religiously affiliated, which is what the district court’s ruling would lead to.” 

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)

State Rep. Jason Nelson of Oklahoma City, a leading advocate of the special needs scholarship program, responded quickly to today’s decision leaving the program in place.

In a statement sent to CapitolBeatOK, Nelson said, “Allowing the program to continue during the appeal is the right thing to do. “I know the decision by the judge to grant a stay comes as welcome news to the parents and students who are currently benefiting from the law. I look forward to the Oklahoma Supreme Court taking up the appeal of Judge Nightingale’s ruling where I believe it will be overturned.

“The law is clearly constitutional if numerous similar state programs are any indication. Opposition to this law is parochial and political – not constitutional.” 

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