Oklahoma Supreme Court Upholds School Choice

Barely a week after a Georgia judge threw out a challenge to the state’s scholarship tax credit law, today the Oklahoma Supreme Court unanimously upheld school vouchers for students with special needs.


Plaintiffs argued that the Lindsey Nicole Henry Scholarships for Students with Disabilities violated the Oklahoma constitution’s historically anti‐​Catholic Blaine Amendment, which prohibits the state from appopriating public funds for sectarian purposes. A lower court had agreed, limiting the vouchers only to private schools without any religious affiliation. Today, the state supreme court overturned that decision, upholding the law in its entirety.


Plaintiffs had argued that the vouchers unconstitutionally aided religious schools, but the court found that the voucher law “is void of any preference between a sectarian or non‐​sectarian private school” and that “there is no influence being exerted by the State for any sectarian purpose with respect to whether a private school satisfies [the law’s eligibility] requirements.”


Despite being “religion neutral,” the plaintiffs argued that the law is unconstitutional because more voucher recipients chose to attend religious schools than non‐​religious schools. However, the court rejected this claim, citing the U.S. Supreme Court’s decision in Zelman v. Simmons‐​Harris (which upheld school vouchers in Ohio): “the constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are religious, or most recipients choose to use the aid at a religious school.” What matters to the constitution, the Oklahoma court explained, is only that the law is religiously neutral and that parents have a choice: “When the parents and not the government are the ones determining which private school offers the best learning environment for their child, the circuit between government and religion is broken… Scholarship funds deposited to a private sectarian school occur only as a result of the private independent choice by the parent or legal guardian.” [emphasis in the original]


The court outlined the key factors that led to their conclusion:

(1) voluntary participation by families in the scholarship program;


(2) genuine independent choice by parent or legal guardian in selecting sectarian or non‐​sectarian private school;


(3) payment warrant issued to parent or legal guardian [not directly to a private school];


(4) parent endorses payment to independently chosen private school;


(5) Act is religion neutral with respect to criteria to become an approvate school for scholarship program;


(6) each public school district has the option to contract with a private school to provide mandated special educational services instead of private services in the district;


(7) acceptance of the scholarship under the Act serves as parental revocation of all federally guaranteed rights due to children who qualify for services under [the Individuals with Disabilities Act]; and


(8) the district public school is relieved of its obligation to provide educational services to the child with disabilities as long as the child utilizes the scholarship.

The timing of the decision couldn’t be better for supporters of the education savings account (ESA) legislation that just received a green light from the Oklahoma House Common Education Committee this week. Opponents had argued that the ESAs were likely unconstitutional, but with the court’s unanimous ruling, that will no longer be a concern. Legislators can now focus on the merits of ESAs.


[Update: The American Federation for Children posted the decision here.]