School districts cannot sue special education parents over use of school vouchers

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The Oklahoma Supreme Court on Tuesday, November 20, decided that the Jenks and Union Public School Districts lack the standing to sue parents over their use of state educational vouchers that pay for their special education students to attend private K-12 religious schools. At issue was the Lindsey Nicole Henry Scholarship for Students with Disabilities Program (LNH) which allows the parent/guardian of a public school student with a disability to exercise their parental option and request to have an LNH Scholarship awarded for their child to enroll in and attend a private school, if the child is on an Individualized Education Program (IEP) prior to the request and has spent the previous school year in attendance at a public school in the state by being reported by a school district for funding purposes during that year.

The issue at hand is First Amendment separation of church and state issues, not special education law. The two districts believe that the LNH scholarships violate numerous principles of both the Oklahoma State Constitution and the federal United States Constitution. In relevant part, the Oklahoma Constitution reads

No public money or property shall ever be appropriated, applied, donated or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.


(Constitution of the State of Oklahoma; Article II, Section 5)

The Court’s decision does not address the constitutionality of the law but rather holds that the districts do not have the legal standing necessary to sue the parents of the children in the case. The basis for this ruling is that the districts are not suffering harm. In the decision, the Court states, “the funds at issue are not taxes from taxpayers in the districts’ county revenue streams that a county assessor is improperly reducing or disposing of, but part of the Legislature’s general grant to the districts, through the State Department of Education. Because the school districts are not the ones charged with the duty to provide free public education, the Legislature’s withholding of certain funds, even if it is unconstitutional, does not violate a constitutionally protected interest of the school districts themselves, because they are merely the Legislature’s vehicle.”

The decision came down 7-2. The two dissenting justices contended that the constitutional issues of the case had been fairly joined and should be considered. The ruling reverses a decision by a Tulsa district judge that ruled the program unconstitutional.

The districts are currently considering how to proceed in light of this decision.

Click here for a timeline of the legal battle. (Scroll to bottom of article.)



Texas judge issues injunction allowing cheerleaders to display religious banners


Kountze High School banner

A Texas judge issued an injunction allowing cheerleaders to display religious banners. This temporary injunction will allow Kountze High School cheerleaders to continue to display banners stating Christian messages at their football games. The temporary injunction replaces a temporary restraining order that had put in place to allow the cheerleaders to continue the use of their banners.

The issuance of this order by no means puts an end to this dispute. Judge Steven Thomas set a trial date June 24, 2013, to make a final decision on the merits of the lawsuit. Cheerleaders have had run through banners reading  “I can do all these through Christ who strengthens me,” and “If God is for us, who can be against us?”

The main issue in this case appears to be the nature of the cheerleading group itself. Rather than being a state sponsored activity, the cheer group has little to do with the school other than the students attend it. They pay for their own uniforms, utilize their parents as coaches, and lead their own practices during non-school hours. While there are faculty advisers, the

two faculty “sponsors,” Tonya Moffett and Beth Richardson, who are also parents of two cheerleaders, supervise the team to ensure a safe, respectful, and orderly environment. The faculty sponsors are present at the practices in only a nonparticipatory, custodial capacity.
Additionally, the decision seems to place weight on the fact that the cheerleaders rotate the responsibility of rotating the responsibility of what appears on the message. Thus, their attorneys are able to argue the messages are personal rather than group sponsored speech.
Furthermore, no district monies are expended for the purchase of supplies. The banners are not required by the school.
Finally, some years ago Texas passed a law, the Religious Views Anti-Discrimination Act of 2007, which was passed with the intent of helping to protect student religious speech by requiring school districts to adopt disclaimers separating student speech at school-sponsored events from school sponsored messages.

Interestingly, at the time of the mid-October decision, Kountze High’s football had a 5-1 record, since the decision came down, the Lions have gone 0-4. Given the religious stature of Texas high school football itself, one wonders whether Kountze High cheer leaders might not voluntarily discontinue their lawsuit.


Kountze High School cheerleader run through banner (Click for video)