Oklahoma Districts Defy Special Needs Voucher Law

Published December 14, 2010

Officials in four school districts surrounding Tulsa, Oklahoma say they will not honor a new state law providing scholarships to parents of children with disabilities. The school boards in the Bixby, Jenks, Broken Arrow, and Union districts have passed resolutions to defy the law, which they assert violates the state constitution.

The onus will likely fall on parents to sue the districts into complying with the law, according to Oklahoma’s Department of Education and a career education lawyer.

Gov. Brad Henry (D) in June signed the bill granting parents of children with disabilities the right to choose the school their children will attend. The Lindsey Nicole Henry Scholarships for Students with Disabilities Act would make available to thousands of disabled students with an individualized education program a scholarship of up to $7,500 to attend any public or private school that meets state accreditation standards.

The scholarship program—known as Lindsey’s Law—was named in memory of Henry’s daughter, who died of a rare neuromuscular disease as an infant.

House Bill 3393, by Rep. Jason Nelson (R-Oklahoma City) and Sen. Patrick Anderson (R-Enid), narrowly passed the state legislature. Four House Democrats broke ranks to join the Republican caucus in voting yes. The state Senate approved the bill by a close vote of 25-22.

‘Bait Parents’ to Sue
The State Board of Education has taken a wait-and-see approach. In October it voted down a resolution to condemn the four school districts, opting instead to wait for further guidance from the state attorney general. It’s still waiting.

Meanwhile, Tulsa’s school board voted to process six scholarship applications the district received in September from special education students, but it said officials would turn away future applicants.

“It appears the school boards are trying to bait parents into suing them, which will probably happen,” said Brandon Dutcher, vice president for policy at the Oklahoma Council of Public Affairs.

“Since the constitution trumps a mere statute, they claim to be duty-bound to disobey the statute,” Dutcher explained. “At least one recent poll finds Oklahomans, by a margin of better than two to one, disagree with that approach.”

‘No Precedent’
Even foes of the law expressed disbelief at the boards’ noncompliance.

“I can think of no precedent for it in over 40 years of practicing law,” said Bill Wilkinson, a Tulsa attorney and former commissioner of the Oklahoma Department of Human Services. Wilkinson calls the law “poorly written,” “terrible” and “open to abuse.” Nevertheless, he says he cannot understand why school districts facing severe budget deficits and in need of community support would flout the law.

“The unfortunate thing about it is, [the districts] have placed the burden on the shoulders of parents,” Wilkinson said. “Forcing parents to sue is wrong.”

Wilkinson says the districts should have availed themselves of the legal process already in place. “If you want to test the legality of a law, you go to court and you file a petition for declaratory judgment,” he said.

Financial Impact Disputed
Wilkinson said Lindsey’s Law places unrealistic financial burdens on cash-strapped districts to remedy a limited, often highly specialized situation. He said the law makes no distinction between “profoundly disabled” students and those with limited treatable disabilities, such as mild speech impediments.

“For example, virtually every young child has some kind of speech impediment that could be developed into an [Individualized Education Program],” Wilkinson said. “Almost any parent can argue some kind of issue in order for their child to have an IEP and then elect to go to a private school.”

Jeff Reed, director of state programs and government relations for the Foundation for Educational Choice in Indianapolis, disputes the claim the law is financially burdensome.

“Lindsey’s Law is written so that it will either be fiscally neutral to the state or provide fiscal savings,” he explained. “If Florida’s special-needs scholarship law is any indication, parents will be more satisfied, children will be better off as a result of choosing a school outside the traditional public schools, and taxpayers will save money.” Oklahoma’s law was modeled after Florida’s 1998 McKay Scholarships law.

‘It Has to Do with Money’
Dutcher says concerns about parents abusing the special-ed vouchers are overblown. Instead, districts may be responding to financial incentives, he said.

“Broken Arrow Superintendent Jarod Mendenhall said, ‘It’s not about the money,’ and since education bureaucrats are famously indifferent when it comes to money I see no reason to doubt him,” Dutcher said. “Except he also said his district isn’t complying because ‘We don’t have enough money to fund what we do now.’ So, yes, I would say it has to do with money.”

Mendenhall’s office did not return calls seeking comment.

“I try not to chuckle when public-school boosters say they’re worried about waste, fraud, and abuse,” he said. “Especially after all these years of the special-ed bounty system—labeling kids ‘disabled’ who aren’t disabled, permanently altering the course of their lives, just so [the district] can get extra money for the government schools. Now they can’t bear to let any child ‘escape.'”

Legislative Action Possible
Dutcher said if the state attorney general does not act against scofflaw districts, the legislature might have to step in.

“One suggestion is to move the scholarship-granting authority to the state department of education, rather than have each local school district do it,” he said.

Oklahoma’s legislature reconvenes in February.

Ben Boychuk ([email protected]) is managing editor of School Reform News.