The number of private schools in Oklahoma authorized to serve students with special needs through a state scholarship program has increased significantly since the repeal of previous illegal regulations that prohibited Christian schools from participating.
This month, Muskogee Seventh Day Adventist Christian Academy became the latest private school to receive state approval to serve students on the Lindsey Nicole Henry Scholarship for Students with Disabilities (NHL) program. The school received final approval at the June meeting of the State Board of Education.
The NHL program provides scholarships for students with special needs and for fostering children, allowing them to use tax funds to attend private schools. A portion of the per pupil amount that would otherwise be spent on the education of each NHL beneficiary at a public school is instead provided to parents to pay for the education of that same child at any approved private school.
As passed in 2010, the NHL Act includes a provision requiring that participating private schools may not discriminate “on the basis of race, color or national origin.”
However, under the administration of State Superintendent of Public Instruction Joy Hofmeister, the Oklahoma State Department of Education (OSDE) unilaterally rewrote NHL regulations to also prohibit discrimination based on gender. orientation and religious affiliation.
The revised regulations in effect required that private religious schools that adhere to traditional Christian teaching nevertheless hire atheists as teachers and/or waive student code of conduct requirements regarding sexuality and marriage, or otherwise waive serving the NHL students.
When news of OSDE’s regulatory changes became public in 2020, legal experts warned that the agency’s actions could result in successful lawsuits against the State of Oklahoma for violating citizens’ rights in the title of the first amendment.
In the same year, an opinion of the Supreme Court of the United States in Espinoza v. Montana Department of Revenue ruled that Montana government officials could not prevent children who participated in a state tax credit scholarship program from using their scholarships to attend private schools affiliated with religions.
“We have repeatedly argued that the Establishment Clause is not violated when religious observers and organizations benefit from neutral government programs,” the U.S. Supreme Court opinion said, noting that officials of Montana had attempted to cut “families off from benefits otherwise available if they choose a religious rather than a secular private school, and for no other reason.
The Oklahoma Supreme Court had also upheld the legality of allowing NHL recipients to use state scholarships at private religious schools, ruling in 2016, “When the Parents and not the government are the ones who determine which private school provides the best learning environment for their child, the circuit between government and religion is broken” [emphasis in original].
An official notice issued on December 3, 2020, by then-Attorney General Mike Hunter’s office concluded that the Oklahoma State Department of Education’s NHL reviews were illegal. The Attorney General’s opinion stated that “as a mere textual matter, private schools seeking to participate in the Henry Program shall not discriminate on the basis of ‘race, color, or national origin. “. Nothing else is required… with regard to non-discrimination.
Hunter’s opinion also concluded that the OSDE rule “misinterprets both federal law and the law authorizing the Henry program, and was therefore beyond the power of the Department to enact under the law on administrative procedures. Accordingly, the rule is not enforceable to the extent that it adds to the requirements set out in the law.
After Hunter’s advice, the State Board of Education voted to amend NHL regulations to remove illegal provisions.
Since then, the number of private schools that can accommodate NHL students has increased significantly and the total now stands at over 80 schools. While some private schools added to the NHL program since then do not have a religious mission, many do.
In addition to the Muskogee Seventh-day Adventist Christian Academy, 17 other private schools have been approved to serve NHL students since the revocation of previous illegal restrictions on Christian school attendance.
Schools added to the program include Christian Heritage Academy in Del City, Texoma Autism and Behavior Intervention School in Ardmore, WovenLife in Oklahoma City, Keystone Adventure School & Farm in Edmond, SNU Lab School in Bethany, Mount Olive Lutheran School in Miami, Infinity Generation Generals Preparatory School in Oklahoma City, Stillwater Christian School, St. Mary’s Catholic School in Ponca City, Claremore Christian School, James Caraway Christian Academy in Chickasha, School of St. Mary in Tulsa, Terra Verde in Norman, All Saints Catholic School in Broken Arrow, Tulsa Hope Academy, Cornerstone Christian Academy in Oklahoma City, and Antioch Christian Academy in Oklahoma City.
A new opinion of the Supreme Court of the United States, rendered on June 21 in Carson v. Makin, further points to Hofmeister’s constitutional flaws and prior OSDE regulations prohibiting private religious schools from accessing the NHL program. The carson treated case of a Maine state program that allows certain families in areas without a local public high school to use state funds for private school tuition. Since 1981, Maine had limited tuition assistance payments only to “non-denominational” private schools.
In carsonthe U.S. Supreme Court has ruled that “a neutral benefits program in which public funds are disbursed to religious organizations through the independent selection of private benefit recipients does not violate the establishment”.
In a statement, Leslie Hiner, EdChoice’s vice president of legal affairs, noted that multiple U.S. Supreme Court rulings have now invalidated the legalistic excuses offered to bar students from attending religious schools by the bias of state programs, primarily the argument that funding should be denied. either on the basis of a school’s religious status or because of alleged religious “uses” of public funds.
“In a school choice program, a state cannot prohibit a parent from choosing a private school simply because the school is religious,” Hiner said, “and as a result of today’s decision Today, a state cannot prohibit a parent from choosing a private school simply because the school educates its students in their faith, presents topics from a religious perspective, and trains students to live the values of their faith. .