The state high court will rule on the constitutionality of a scholarship for children with autism and other neurological disorders.
Last month, the Oklahoma Supreme Court agreed to decide the constitutionality of House Bill 3393, the Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act.
Under the law, authored by state Rep. Jason Nelson, R-Oklahoma City, and state Sen. Patrick Anderson, R-Enid, students with disabilities such as Down syndrome or autism who have an individualized education program qualify for scholarships to attend any public or private school meeting accreditation requirements of the State Board of Education.
At the time, Florida, Georgia, Utah, Ohio and Arizona had similar laws. Supporters said HB 3393 closely mirrored the Florida and Georgia laws, that it would give options to parents seeking the best and most appropriate learning environment for their child and that the U.S. Supreme Court had already upheld the constitutionality of using state money for special education programs in private schools.
Nelson has said speaking with families of special needs children taught him that the bill was hope for those who desperately needed those options.
HB 3393 went into effect on Aug. 27, 2010.
Afterward, some Jenks parents requested information about the scholarship for their children, and, in some cases, asking for scholarship checks to be sent to private schools on their behalf, according to a position statement on the issue by Jenks. The district stated it did not intend to pay any scholarship money to any parents or any private school under the law, whether the request came from a parent on an individualized education program or a private school.
Jenks argued the payment under HB 3393 to private sectarian schools violated Article II, Section 5 of the Oklahoma Constitution, which precludes the use of public funds, directly or indirectly, for the use, benefit or support of sectarian institutions.
Jenks argued the Legislature is only authorized by law to establish and maintain a free public school system, and the funding of private schools under HB 3393 violates Article I, Section 5 and Article XIII, Section 1 of the Oklahoma Constitution.
Jenks also cited a section regarding gifts (Article X, Section 15), a lack of a mechanism for a refund to the district and the creation of unknown tax liabilities to the district since it appeared such payments were income to the parents.
In the fall of 2010, several Tulsa-area public schools voted to not process the scholarships. Parents of special needs students sued Jenks Public Schools and Union Pubic Schools in Tulsa County over the denial of scholarships allowed under HB 3393.
In May 2011, the Legislature passed a follow-up bill, which gave the Oklahoma State Department of Education scholarship program oversight.
The scholarship is worth the state and local dollars spent on the child in his or her public school or private school tuition and fees, whichever is less, according to the Friedman Foundation for Educational Choice. The average voucher value in 2011–12 is $7,436. Last year, 135 students from 41 schools were participating.
In March 2012, a Tulsa District Court judge ruled that HB 3393 is unconstitutional since state funds behind the act could be used for tuition at a private, religious school.
After the state’s high court agreed to hear the appeal, the Archdiocese of Oklahoma City and the Good Shepherd Catholic School at Mercy filed an application with the court in support of the law.
Established in the fall of 2011, the private school was accredited by the Catholic Archdiocese of Oklahoma City, according to information posted on the hospital’s website. The University of Central Oklahoma assists with staffing and training. Mercy provides the facilities, and the Inasmuch Foundation provided a loan.
In May, the school announced that it has received a $1,000 donation from McCaleb Homes for supplies and scholarships. The home builder donates $1,000 to a school or nonprofit for each home it completes in the Arbor Creek addition, located just east of Interstate 35 and Second Street in Edmond, based on the home buyer’s choice.
At the time, eight students were enrolled in the school. Once it reaches full capacity, it will enroll about 20 students with autism or similar neurological disorders and about five neurotypical students, ages 3-9. Each student has a behavioral interventionist who provides individual attention throughout each day.
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