Oliver v. Hofmeister

Litigation: This case began in October 2013, when 12 plaintiffs renewed the 2012 legal challenge—Ind. Sch. Dist. No. 5 of Tulsa Co. v. Spry, 2012 OK 98, 292 P.3d 19 (2012)—this time with proper litigants. In a written opinion, Oliver v Barresi, No. CV-2013-2072 (September 10, 2014), the Oklahoma County District Court ruled the Lindsey Nicole Henry Scholarship for Students with Disabilities program violated Article 2, Section 5—the Oklahoma Constitution’s Blaine amendment—only insofar as the program allows public funds to be used to pay tuition at private, sectarian religious schools; paying tuition at private, non-sectarian religious schools was deemed permissible by this narrow ruling. Opposed to educational choice program: American Civil Liberties Union of Oklahoma; Americans United for Separation of Church and State; Cooperative Council for Oklahoma School Administration (includes Oklahoma Association of Elementary School Principals, Oklahoma Association of Retired School Administrators, Oklahoma Association of School Administrators, Oklahoma Association of Secondary School Principals, Oklahoma Directors of Special Services, Oklahoma Middle Level Educators Association); National School Boards Association; In support: Becket Fund; Friedman Foundation for Educational Choice; Institute for Justice; Oklahoma Independent Colleges and Universities; State Rep. Nelson and State Sen. Anderson

Outcomes: On February 16, 2016, the Oklahoma Supreme Court ruled that the state’s voucher program is constitutional in a 9-0 decision with one concurring opinion. Several factors that were key to the court’s decision included 1) participation in the voucher program is voluntary; 2) a parent’s choice of school is strictly independent; 3) education funding flows from the state to the parent; 4) the program itself is neutral regarding religion; 5) any benefit to a private school is derived from the parent’s choice, not the state; 6) there is no adverse impact on the ability of religious schools to act independently of state control; 7) there is a substantial benefit to the state when a child uses a voucher; it is not a gift. Citing the landmark Zelman v. Simmons-Harris case (see Ohio | Cleveland Scholarship Program), the court said, “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.”

Why it Matters: Public school districts in and around Tulsa sued parents of children in their own districts instead of suing the state to block implementation of what they considered to be an unconstitutional law, which would have been the customary legal approach. Parents who requested vouchers for their children with special needs to attend different schools acted within the law; they did nothing wrong. One plaintiff parent had two children, one who remained in the assigned public school and one who requested a voucher because this child was not receiving special needs services the public school should have provided but did not. This parent of a child attending a public school was also sued by her child’s public school district. Oliver v. Hofmeister was necessary to honestly take the question of voucher constitutionality to Oklahoma’s Supreme Court for final judgment. Legal observers believed the court would rule against vouchers; the unanimous verdict pronouncing that vouchers are legal in Oklahoma came as a surprise to everyone. Nonetheless, the court’s opinion was well-reasoned, soundly based in precedent followed in other state courts and at the U.S. Supreme Court, and was firmly decided, with an excellent concurring opinion.

Effects: Children with special needs now have a funded option to attend a school that works for them. Parents have been instrumental in encouraging new schools to open that directly satisfy their children’s needs and the Oklahoma community has responded. Good Shepherd at Mercy, a collaboration between Mercy Hospital, the University of Central Oklahoma, and the Archdiocese of Oklahoma City, opened in 2011, the same year Oklahoma enacted the Lindsey Nicole Henry Scholarship for Children with Disabilities. It has since expanded to three campuses. Good Shepherd is a first-of-its-kind model for Applied Behavior Analysis, where the parent is recognized as the primary therapist for the child. Serving students diagnosed with autism and other developmental disabilities ages 2 to 14 years, this program that applies principles of behavior to learning is the only proven intervention for children with autism.

Amicus Brief