Under our legal systems, all laws are presumed to be constitutional until and unless a Court declares them to be unconstitutional. Therefore, I am troubled by the fact that the law firm that is representing you is advising you to violate the law rather than directly challenging it in Court. The proper way to challenge HB 3393 is to file an action seeking a declaratory judgment on whether the law is constitutional or not. I am attaching to this letter the transcript of the October 14, 2010, Channel 6 interview of Tulsa Attorney Bill Wilkinson on this issue. Mr. Wilkinson apparently represents other school districts and doesn’t like the scholarship law either – but he thinks that violating the law is the wrong way to handle this situation.
I am also concerned about the fact that your Superintendent’s son, Matt Ballard, is an attorney with the law firm that is urging you to violate the law. I am concerned that this personal relationship creates a conflict of interest which may be clouding the judgment of the people that are asking you to vote to violate this law.
I recognize that there are many different views on HB 3393. It was not an issue that we took lightly in the legislature. We spent hours meeting with attorneys, superintendents, and officials from the State Department of Education on the issue. We revised the legislation to meet the concerns they raised. Furthermore, we won the approval of Governor Henry – who is an attorney and a strong advocate for public schools. The Governor and his wife were in such support of the measure that they agreed to allow the scholarships to be named after their deceased child. I only share this part of the story to clear up the rumors that have been spread that we named it after his daughter without his consent – that simply is not true.
This scholarship program was created using the State of Florida’s McKay Scholarships as a model. If you have not heard of the McKay scholarships then I would urge you to go to the Florida Department of Education’s website and read about their success. Or simply call the Florida Department of Education and speak to them about it – that is what I did when I was asked to carry this bill. The success of the Florida program has been phenomenal. When it began 10 years ago, special needs students in Oklahoma were outperforming Florida special needs students on test scores. Since that time, test scores for Florida special needs students (both in public and private schools) have soared past Oklahoma special needs students. So why has there been such success in Florida? The answer is that as a result of these scholarships, class sizes in public schools were reduced and private schools specializing in special needs students increased. In addition to Florida, Georgia, Ohio, Arizona and Utah have also established similar scholarship programs as well.
Reasonable minds can differ and I can certainly understand questions being raised about the constitutionality of the measure. However, I certainly believe that the scholarship program is constitutional. These programs have existed for years in other states – it is just new to Oklahoma. The simplest analogy I can give you to explain why it is constitutional is to compare these scholarships with the State Medicaid program. Both programs involve State tax dollars. The State routinely makes Medicaid payments to religious affiliated hospitals such as St. John’s in Tulsa and other private facilities such as nursing homes. How can we legally spend these State tax dollars on religious hospitals and private entities? The answer is because the money is being spent on the patient – not the religious/private institution. Likewise, these scholarships are being spent on the students – not the religious/private institution. Nor are these scholarships gifts. A gift would be something that comes with no restrictions. That is not the case with these scholarships. In order to qualify for these scholarships, the student and the private institution must meet certain continuing requirements. If they do not meet those requirements then they are not entitled to the scholarship.
I would urge you to ask a lot of questions about the advice you are being given in this matter before you vote to violate the law. Perhaps you should consider seeking a second opinion.
Sincerely,
PATRICK ANDERSON
State Senator
