SUPREME COURT S TATE OF Oki AHOMA

FILtij

IN THE SUPREME COURT OF THE STATE OF OKLAHOMA JUN 1 3 2012 INDEPENDENT SCHOOL DISTRICT NO. 5 OF TULSA COUNTY, OKLAHOMA a/k/a JENKS PUBLIC SCHOOLS, and INDEPENDENT SCHOOL DISTRICT NO. 9 OF TULSA COUNTY, OKLAHOMA, a/k/a UNION PUBLIC SCHOOLS, Plaintiffs/Appellees, vs. RUSSELL SPRY, STEPHANIE SPRY, TIM TYLICKI, KIMBERLY TYLICKI, TIM FISHER, KRISTIN FISHER, STEPHAN HIPSKIND, STEPHANIE HIPSKIND, JERRY SNEED, and SHANNA SNEED, Defendants/Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
MI CHAEL

6. RICHE CLERK

No. 110,694 (cons. w/110,693)

AMICUS CURIAE APPLICATION AND STATEMENT OF OKLAHOMA STATE SENATOR PATRICK ANDERSON AND OKLAHOMA STATE REPRESENTATIVE JASON NELSON

William H. Hickman, OBA No. 18395 Brad S. Clark, OBA No. 22525
HICKMAN LAW GROUP

119 N. Robinson, Suite 300 Oklahoma City, Oklahoma 73102 Phone: 405.605.2375 Fax: 405.605.2374 hickman@hickmanlawgroup.com bclark@hickmanlawgroup.com Attorneys for Applicants: State Senator Patrick Anderson State Representative Jason Nelson

IN THE SUPREME COURT OF THE STATE OF OKLAHOMA INDEPENDENT SCHOOL DISTRICT NO. 5 OF TULSA COUNTY, OKLAHOMA a/k/a JENKS PUBLIC SCHOOLS, and INDEPENDENT SCHOOL DISTRICT NO. 9 OF TULSA COUNTY, OKLAHOMA, a/k/a UNION PUBLIC SCHOOLS, Plaintiffs/Appellees,
VS.

No. 110,694 (cons. w/110,693)

RUSSELL SPRY, STEPHANIE SPRY, TIM TYLICKI, KIMBERLY TYLICKI, TIM FISHER, KRISTIN FISHER, STEPHAN HIPSKIND, STEPHANIE HIPSKIND, JERRY SNEED, and SHANNA SNEED, Defendants/Appellant. AMICUS CURIAE APPLICATION AND STATEMENT OF OKLAHOMA STATE SENATOR PATRICK ANDERSON AND OKLAHOMA STATE REPRESENTATIVE JASON NELSON Oklahoma State Senator Patrick Anderson and Oklahoma State Representative Jason Nelson (the "Applicants"), pursuant to Okla. Sup. Ct. R. 1.12(b)(1), hereby respectfully submit this Amicus Curiae Application (the "Application") and request leave to appear in the above-styled appeal as amicus curiae. This appeal pertains to the constitutionality of the Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act, 70 O.S. 13-101.1 and 13-101.2 (the "Act"). The Applicants served as the legislative authors and sponsors of the Act. As the authors of the Act, the Applicants are in a unique position to advise the Court of the legislative intent of the Act. As the authors, the Applicants can advise the Court of the research and efforts undertaken to ensure the Act is consistent with federal and Oklahoma law including vetting of the legislation with Governor Brad Henry's office and with State Superintendent of Public Instruction Sandy Garrett's office prior to final passage by the legislature. 1

As members of the Oklahoma Legislature, Applicants have taken an oath to support, obey, and defend the Constitution of the United States, and the State of Oklahoma. Pursuant to the Oklahoma Constitution, "[t]he Legislature shall establish and maintain a system of free public schools wherein all the children of the State may be educated." See OKLA. CONST. art. XIII, 1. "The Legislature is vested with plenary power to create, abolish, or change school districts . . . in the exercise of this governmental function." See Tyron Dependent School District No. 125 of Lincoln County v. Carrier, 1970 OK 153, 4, 474 P.2d 131, 133. 1 In the present case, Appellees argue the Act is unconstitutional because no public funding for education is to be provided to any private (religious or otherwise) institution. This argument presupposes that no service is being provided by the private facility. Appellees' position is inconsistent with Oklahoma law and practice. Applicants are uniquely positioned to address the legal question as to the Legislature's establishment and maintenance of Oklahoma's Public Schools, and any financial affect on those schools as a result of the Act.' Oklahoma law provides, generally, that state aid to schools is calculated and provided to a school based on the school's enrollment i.e., the funding flows based on the individual student being enrolled in a particular school. Similarly, pursuant to the Individuals with Disabilities Education Act (the "IDEA"), federal aid to public schools is provided based on the general population within the boundaries of a public school district, not on the number of students enrolled in a school district. Therefore, federal aid is not affected when a special education student transfers from

Additionally, the Oklahoma Constitution provides the authority of the Legislature and that it "shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution , upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority...." See OKLA. CONST. art. V, 36. 2 Applicants conferred with the Oklahoma Department of Education ("SDE") and many education professionals in drafting the Act. .

a public to a private school regardless of whether or not a student transfers using a scholarship. Pursuant to Oklahoma law predating the Act, a public school may continue to receive full funding for up to two years through the State aid formula after any student leaves a public school including students on a scholarship. This law is designed to protect public school districts experiencing declining enrollment. Local ad valorem funds and federal education funds remain in the school district.' Further, if tuition and fees at the private school are less than the maximum calculated scholarship amount allowed by the Act, the difference, under the amended Act, is redistributed through the State aid formula. Clearly, private institutions are providing educational services to students with a disability that are obtaining a scholarship pursuant to the Act. Thus, the State of Oklahoma is receiving a financial benefit because special needs students on a scholarship pursuant to the Act are receiving educational services that would otherwise be the responsibility of the State at a higher cost to the public school system. Therefore, the private school, even a private school with a religious affiliation, is not receiving a benefit, direct or otherwise, as parents or private individuals or entities are in fact subsidizing the cost of the education services for children with disabilities that would otherwise fall on the State. As members of the Oklahoma Legislature, Applicants also have a particular interest in apprising the Court of legal issues raised by Appellees' constitutional challenge that contradict numerous examples of federal and state legislation, and programs in which public funds are being provided to private institutions. For example, the Oklahoma School Code, at

3 School districts' funding under the state formula is based on the weighted average daily attendance for the greater of the 3

last two school years. As such, school districts may continue to receive funding for a student utilizing the Act for up to two years after the student is no longer attending the school.

70 O.S. 13-10l 4 , provides that each public school has the duty to provide special education and related services for all children with disabilities who reside in that school district. The public school may satisfy this duty by "joining in a written agreement with a private or public institution..." Id. (emphasis added.) 5 An example of such a public-private partnership is Enid Public Schools, which is represented by Senator Patrick Anderson. Enid Public Schools has used state funds, with the time and effort of public school personnel, to provide special education services to students at Oklahoma Bible Academy.' As a further example of the implementation of the rights afforded to students on an IEP pursuant to IDEA, the federal regulations require a public school to use public funds to pay for the services of a private school employee and to meet the special education and related services needs of a child that has disabilities who attends a private school but resides within the boundaries of the local public school district. See 34 CFR 300.141-l42.7 As an additional example, the SDE has adopted a policy providing that when residential placement of a student with a disability is necessary, it must be provided by the responsible local public school district. As a result, the SDE has entered into contracts with private residential facilities, which may include religious facilities, for educational services for students with disabilities.' If placement in a private institution, religious or non-religious,

4 Further, pursuant to 70 O.S. 11-103.11, public schools are authorized and in fact are using the Bible in public school classrooms in the State. 5 70 O.S. 13-101 incorporates IDEA, which requires that a continuum of alternative placements be made available to meet the needs of children aged birth through twenty-one with disabilities. Federal regulation, at 34 CFR 300.551, expressly states that the required continuum of placements include special schools, hospitals, institutions, or other settings. 6 Additionally, Oklahoma public school districts routinely provide sectarian private schools in the state with supplies and equipment, such as auditory devices, amplifiers, and speech services, for the benefit of student with disabilities enrolled in the private school. Clearly, these services and devices benefit, directly or indirectly, the private institution by helping the private institution meet the special needs of students.. 7 The definition of a parentally-placed child with disabilities includes children enrolled in a private sectarian school. See 34 CFR 300.130. 8 Appellees may assert that the residential placement and the use of public funds for same are only done upon either: 1) an order from a court of competent jurisdiction or that of an administrative hearing officer pursuant to the procedures set forth in IDEA and corresponding federal regulations; or, 2) a decision of the student's IEP team. However, to the extent

is required for the education of a child with a disability, federal law provides that public funds shall be used to pay for the educational and related services. This federal mandate by IDEA is consistent with the legislative purpose of the Act.' Thus, the parents utilizing the Act are merely exercising a right that they have always had pursuant to federal law to unilaterally, or through the Individual Education Plan ("IEP") team, place their child in a private school. Ironically, Appellees and their counsel, which represents a majority of the school districts in Oklahoma, fail to advise the Court of the many instances in which public funds are used to educate children with disabilities that are attending a private, religious or non-religious, school or are paying for special education services via a contract with a private entity. In summary, the Applicants are concerned that the trial judge's ruling will: 1) require the termination of public contracts with private institutions; 2) prevent public-private partnerships for educational services to children with disabilities; 3) jeopardize the State's compliance with IDEA and result in the loss of millions of dollars in federal funding; and 4) infringe upon the Legislature's authority over Oklahoma's education system. The issues that Applicants seek to present as an amicus curiae in this appeal will be of substantial assistance to the Court, and will not be merely redundant of arguments made by Appellants. As such, Applicants respectfully request the Court grant this Application.

Appellees urge such a position, the Appellees would in essence be suggesting that there are exceptions and exemptions to the purported violation of the Oklahoma Constitution. Logic, common sense, and the rule of law dictate otherwise. 9 Courts in other jurisdictions have upheld the allocation of public funds for provision of educational services to students with disabilities enrolled in a parochial school. See Peter v. W edl, 155 F.3d 992, (8`11 Cir. 1998); Helms v. Picard, 151 F.3d 347, (5th Cir. 1998); Russman v. Mills, 150 F.3d 219 (2d Cir. 1998); Peck v. Lansing Sch. Dist., 143 F.3d 619, (6th Cir. 1998). Additionally, the United States Department of Education (the "USDE") has concluded that IDEA funds can be used to purchase a personal computer for a student with a disability enrolled in a parochial school if the computer is used to help the student overcome the disability rather than being used for religious instruction. See Letter to Moore (OSEP 1993). Further, the USDE has reminded school districts that the public school district is ultimately responsible for providing disabled children with residential placement at no cost. See Letter to Lever, (OSEP 1979). In Lawrence Township Bd. Of Educ. v. State of New Jersey, the Court held that a district lacked standing to sue the state under IDEA for relief of the costs of tuition for a student with autism enrolled in a private residential facility. The Court held that the district's claim was a budgetary dispute, better left to state and local authorities.

Ily Submitted, William H. Hickman, OBA No. 18395 Brad S. Clark, OBA No. 22525 HICKMAN LAW GROUP, PLLC 119 N. Robinson, Suite 300 Oklahoma City, Oklahoma 73102 Phone: 405.605.2375 Fax: 405.605.2374 hickman@hickmanlawgroup.com bclark@hickmanlawgroup.com Attorneys for Applicants: State Senator Patrick Anderson State Representative Jason Nelson

CERTIFICATE OF SERVICE This is to certify that a true and correct coy of the above and foregoing was e-mailed and mailed by U.S. Mail, postage prepaid this /S"day of June, 2012, to the following: Andrew W. Lester Matt Hopkins Carrie L. Vaughn
LESTER, LOVING & DAVIES,

P .C.

J. Douglas Mann Karen L. Long Frederick J. Hegenbart Jerry A. Richardson

ROSENSTEIN, FIST & RINGOLD

1701 South Kelly Avenue Edmond, Oklahoma 73013-3623 Telephone: (405) 844-9900 Facsimile: (405) 844-9958 alester@fidlaw.com mhopkins@lldlaw.com cvaughn@lldlaw.com Attorneys for Appellant Bobby L. Latham, Jr. Lance Freije
LATHAM, WAGNER, STEELE & LEHMAN,

525 South Main, Suite 700 Tulsa, Oklahoma 74103 Telephone: (918) 585-9211 Facsimile: (918) 583-5617 dougm@rfrlaw.com karenl@rfrlaw.com fredh@rfrlaw.com jerryr@rfi-law.com Attorneys for Appellee Patrick R. Wyrick Solicitor General
OKLAHOMA ATTORNEY GENERAL'S OFFICE

P.C. 10441 S. Regal Blvd., Suite 200 Tulsa, Oklahoma 74133 Telephone: (918) 970-2000 Facsimile: (918) 970-2002 blatham@lswsl.com Ifreije@lswsl.com Attorneys for Appellant Eric S. Baxter Eric C. Rassbach Eric N. Kniffin
THE BECKET FUND FOR RELIGIOUS LIBERTY

313 NE 21 st Street Oklahoma City, Oklahoma 73105 Telephone: (405) 522-4393 Facsimile: (405) 522-0669 patrick.wyrick@oag.ok.gov Attorney for Intervenor

3000 K Street NW, Suite 220 Washington, D.C. 20007 Telephone: (202) 955-0095 Facsimile: (202) 955-0090 ebaxter@becketfund.org erassbach@becketfund.org ekniffin@becketfund.org Attorneys for Appellant
BSC \1581 \pleadings \Application for Amicus Curiae

William H. Hickman