Lawsuit by public school educators attacks OK scholarship program for special needs children

OKLAHOMA CITY – A lawsuit filed in Oklahoma County District Court seeks to have the Lindsey Nicole Henry Scholarship program declared unconstitutional. 

The case styled Oliver et al. vs. Barresi (CV-2013-2072) seeks to kill the program benefitting Oklahoma’s special needs students. Under the scholarship program, taxpayer dollars follow children to the school of their parents’ choice.

Plaintiffs seek a declaratory judgment to halt the program immediately and a permanent injunction against its operation, as well as attorneys’ fees. State Rep. Jason Nelson, R-Oklahoma City, said the lawsuit filed this month embodies “ideological hostility to the rights of parents to direct the education of their children.”

Nelson is author of the House Bill, the law which created the Lindsey Nicole Henry Scholarship program, named for a daughter, who died in her infancy, of former First Lady Kim Henry and her husband Gov. Brad Henry. 

Among other things, the plaintiffs contend the act violates Oklahoma’s constitutional provisions that ban the use of any government funds to aid any sectarian institution. The lawsuit further asserts the act violates the state constitutional requirement that the Legislature establish and maintain a system of free public schools , and a legal ban on making a gift of public funds. 

The first plaintiff named is a professor at Oral Roberts University, Clarence G. Oliver, Jr., a past education dean at the Christian university and previously a superintendent in the Broken Arrow School District. 

In a statement to Oklahoma Watchdog, Nelson pointed out Oliver is employed at a private institution of higher education which secured more than $380,000 in state scholarship funds through the Oklahoma Tuition Equalization Grant (OTEG) program this school year. 

OTEG, Nelson, is essentially identical to the Henry Scholarlship program: “If the lead plaintiff is so offended by the Lindsey Henry Scholarship Program why has he not challenged the OTEG law that he benefits from – I would be embarrassed.”

Other litigants include state Sen. Earl Garrison, D-Muskogee, retired teacher Amy Vargus of Tulsa, Ponca City Superintendent David K. Pennington, Tulsa minister Ray Hickman, former Jenks Superintendent Kirby A. Lehman, Tulsa attorney Stacy L. Accord, retired teacher Robert M. Peters, University of Oklahoma Prof. Randall K. Raburn, Jenks school board member Melissa Abdo, Bartlesville school finance officer Tim Green, and retired District Judge Gordon R. Melson. 

The powerful and influential Tulsa law firm Rosenstein Fist and Ringold is leading the effort to end the program benefiting special needs children, led by attorneys J. Douglas Mann, Frederick J. Hegenbart and Jerry A. Richardson. 

The lawsuit targets Superintendent of Public Instruction Janet Barresi as defendant and the state Department of Education she runs. 

A previous lawsuit that sought to gut the law was filed directly against parents whose children were benefiting from the Henry Scholarships. The suit by the Jenks and Union public school districts was tossed out 7-2, but the state High Court’s language left room for further litigation. 

Presently, 49 private schools have qualified under rules developed at the state Department of Education to implement provisions of the law, which took effect in 2010. A total of 250 to 300 children have qualified for the scholarship program. 

Plaintiffs specifically object because 43 of the institutions eligible to receive funds from the Henry Scholarships benefitting special needs children are religious schools. 

Rep. Nelson decried the lawsuit, saying none of the plaintiffs has a child with special needs in the public school system where the school is failing to meet the needs of their child. None of them are facing the very real circumstances faced by parents of more than 200 children who use the Henry scholarship program because the needs of their children were not being met.”

Nelson also said, “none of the plaintiffs in this case have demonstrated any interest or willingness to address the legitimate concerns expressed about challenges in public schools faced by parents of the students who are currently using the Lindsey Henry Scholarship.”

A unanimous 5-0 ruling from the Indiana state Supreme Court, issued in March, upholding a state-supported scholarship program could impact the Oklahoma litigation

You may contact Pat at