Lindsey Nicole Henry Scholarship Program to Continue During Appeal

Nelson Praises Decision to Maintain Scholarship Act

OKLAHOMA CITY – State Rep. Jason Nelson today said Tulsa district court judge Rebecca Nightingale’s order allowing students to continue using special-needs scholarships is the right decision.

“Allowing the program to continue during the appeal is the right thing to do,” said Nelson, R-Oklahoma City. “I know the decision by the judge to grant a stay comes as welcome news to the parents and students who are currently benefiting from the law. I look forward to the Oklahoma Supreme Court taking up the appeal of Judge Nightingale’s ruling where I believe it will be overturned. The law is clearly constitutional if numerous similar state programs are any indication. Opposition to this law is parochial and political – not constitutional.”

The Lindsey Nicole Henry Scholarship Act allows students with a disability on an individualized education program (IEP) to receive state-funded scholarships to attend private school. The scholarships are funded with money already designated for the child’s education.

In response, the Jenks and Union school districts sued some of the parents of children with special needs who obtained the scholarships provided by the law.

Nightingale ruled against the program because some scholarship recipients used the funds to attend private schools with a religious affiliation.

Her decision not only puts the scholarship program at risk, but also many other state programs. Medicaid, which pays for health care for the poor, is one of the largest state programs imperiled by the Jenks/Union lawsuit since many state hospitals have religious affiliations.

Eric Baxter, Senior Counsel with the Becket Fund for Religious Liberty, is representing the parents in the lawsuit.

“We are pleased the students will continue learning in an environment that can address their needs,” said Baxter. “However, it is unfortunate that the school districts decided to spend their money suing the families of disabled students instead of supporting opportunities for students with disabilities to succeed. It’s like suing grandma because she signed up for Medicare.”

“It was a win-win situation,” said Baxter. “The scholarships meet pressing needs without imposing additional costs on the state.”

“This decision is unprecedented,” said Baxter. “The Oklahoma Supreme court has been clear for decades that the State can contract with private entities—including religiously-affiliated entities—to provide services the State would otherwise provide directly. What the State cannot do is exclude some service providers simply because they are religiously affiliated, which is what the district court’s ruling would lead to.”

Additional Information:

Case Page

Judge's Order Staying Judgment Pending Appeal (April 17, 2012) 


Judge's Entry of Judgment (April 16, 2012) 

Jenks & Union Schools Continue Vendetta Against Children with Special Needs

OKLAHOMA CITY (September 7, 2011) – A lawsuit Jenks Public Schools and Union Pubic Schools filed last week targeting the parents of special-needs children is frivolous, cruel and misguided, state Rep. Jason Nelson said today.

“This lawsuit is vindictive and extremely out of line,” said Nelson, R-Oklahoma City. “It essentially tells parents: ‘Beware, school administrators will sue you if you dare seek a better education for your special-needs child.’ Seeing such a reckless lawsuit filed at the behest of two superintendents whose salaries total nearly half a million public dollars a year should send cold chills down the spine of every parent in the state.”

Named as defendants in the district court lawsuit are parents who obtained scholarships for their special-needs children through the successful Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act.

Lindsey Nicole Henry Scholarships allow a student with a disability (such as those with Down syndrome or Autism) who has an individualized education program (IEP) to receive state-funded scholarships to attend a private school that parents believe can better serve their child. The scholarships come from the amount of money already designated for the education of those children.

The amount spent on students receiving scholarships to date is a combined total of $197,345 – a sum that is less than the superintendent’s salary at both Jenks and Union.

“Instead of being sued, these parents should be lauded for being engaged in the education of their children.  For years, they suffered as these same public schools failed to provide a quality education to their special-needs child.  And now these schools are putting their interests ahead of the interests of the child,” said Nelson, who authored the scholarship law.

“The parents did not create the program and are clearly not responsible for enforcing or administering the program. The parents simply obtained a scholarship for their special-needs child as provided for in state law,” Nelson said. “These parents now find themselves in a position where their local districts are trying to punish them in court for simply following state law.”

Nelson said the basic premise of the districts’ lawsuit is troubling.

“There is no difference between this lawsuit and a school district choosing to sue parents who transfer their child to another school district under the state’s open transfer law. In both cases parents make the choice to transfer their child to a different school pursuant to state law and in each case a portion of the money follows that student to the new school,” Nelson said.

The Jenks and Union school boards voted in early August to pursue “any action the superintendent deemed necessary with regard to legal action against appropriate persons and entities."

“Little did the public know that what ‘appropriate persons’ actually meant was: ‘Let’s sue the parents.’ Had the public known that was the districts’ intention, there would likely have been the justifiable outrage there is today over this misguided action,” Nelson said.

“For years we heard that schools did not have enough funding to take care of special-needs children and that it hurt the education of other pupils.  Now we have a solution for helping these students – and reducing the burden on the schools.  From this lawsuit it appears these superintendents care more about the money than they do about the child,” Nelson concluded.

Rep. Kern asks for A.G. opinion on scholarship taxation, Tulsa attorney rebuts assertion in story

By Patrick B. McGuigan, Published 26-Jan-2011, CapitolBeatOK.com

State Rep. Sally Kern has asked Attorney General Scott Pruitt for a formal opinion concerning assertions by some public school officials that scholarships supporting special needs scholarships are subject to federal taxation.

Meanwhile, an attorney with the controversial Tulsa law firm of Rosenstein, Fist and Ringold has directly rebutted the conclusion reached in a CapitolBeatOK news storythat the firm was “apparently” directing public school clients to tell parents they faced such taxation.

In her letter to Pruitt, dated yesterday (Tuesday, January 25), Rep. Kern wrote:

“I would like to request an opinion concerning an issue that has arisen because of the Lindsey Nicole Henry special needs scholarship Bill.

“It has come to my attention that school districts are asking for W-9s from the parents of the students using this scholarship. This scholarship money should be non-taxable.

“I request an official opinion on the following two questions:

1)   Is this scholarship money taxable?
2)   Does a school district need to send a W-9 to the parents utilizing this scholarship?

“I respectfully ask that you publish an opinion as soon as possible as these school districts seek to confuse and raise doubts about the program in the minds of parents and these parents are preparing to file their taxes in the near future.”

Today, CapitolBeatOK received an email from Rosenstein Fist Ringold. CapitolBeatOK appreciates the information received. The email reads as follows:

“My name is Jerry Zimmerman and I am the tax partner with the law firm of Rosenstein, Fist and Ringold (‘RFR). I had an opportunity to read your article that was published on Jan 25th in CapitolBeatOK, with respect to the taxation of the Lindsey Nicole Henry Scholarships. I am also making the assumption in responding, that RFR is the controversial law firm to which you refer in your article.

“Please allow me to provide you with the facts. When RFR has been requested by its school district clients to analyze the tax reporting matters concerning the scholarships, the task of responding to those requests has been assigned exclusively to me.

“In fact, I have specifically and unambiguously advised the school districts that have requested advice, that the school districts are NOT required to issue forms 1099 to the recipients of the scholarships. We have never been asked by any of our clients to issue an opinion, nor have we ever rendered an opinion, as to whether the receipt of the scholarship proceeds is a taxable event. I suspect that we have not been asked to issue such an opinion because our clients are the school districts as opposed [to] the recipients of the scholarship awards.

“As such, our clients have asked about their respective duties to report or forbear from reporting the issuance of the scholarship proceeds. I appreciate your article and I thought that it was incumbent on me to advise you of the facts. Very truly yours, Jerry Zimmerman.”

Bixby Public Schools follows Owasso's reversal, will implement Lindsey's Law

By Patrick B. McGuigan, CapitolBeatOK.com 

Boards of Education in two Oklahoma public school districts dramatically reversed themselves this week. They have now agreed to authorize local implementation of the historic special needs scholarship program the Legislature passed earlier this year.

At the board of education meeting in Owasso, members voted Thursday (December 16) to reverse a controversial decision to defy implementation of the Lindsey Nicole Henry Scholarships Program.

The  Henry scholarships allow families with special education children previously enrolled in public schools options to remain there or to switch to a private provider for their student, with the money following the child.

In discussions with reporters and others, members of the board indicated they were switching from opposition to support because legislative sponsors had agreed to make changes in the law. However, the principal sponsor of the law had already listed possible revisions in closing legislative debate last spring, and in both of the interim studies focused on the new statute, also known as Lindsey’s Law.

The new posture from the Owasso board came after a local attorney had begun a  Writ of Ouster against the board members. In a letter to Attorney General Drew Edmondson, Gordon Cummings had characterized the board’s prior position as “willful misconduct.”

Owasso superintendent, Dr. Clark Ogilvie, remarked at the beginning of Thursday evening’s meeting, “It is now my understanding that the bill’s author, Rep. Jason Nelson, … and of course he’s here this evening. It’s my understanding that he has reserved a shell bill in the coming session for possible amendments to House Bill 3393 and that indicates to me that he has a willingness to amend portions of the law that were most concerning to school districts across the state of Oklahoma, including ours.”

Ogilvie continued, “And, as a result, as a show of good faith to Rep. Nelson and other legislators who will be taking action on this matter in the coming months I would recommend that the Board rescind its action from October 12.”

On a tape of the brief meeting, obtained by CapitolBeatOK, the board chairman can be heard asking members, “Is there any discussion or comments?” A member of the panel replied: “I think it was well said. I move we vote to rescind the resolutions we adopted by the board at it’s meeting October 12, 2010 in regard to House Bill 3393.”

The motion was seconded, a roll call was taken the new position passed unanimously.

In an interview this week, just hours before a second district took similar action, state Rep. Nelson told CapitolBeatOK, “I'm excited for the students and their parents who will now be able to receive the benefits provided in House Bill 3393. They were put in a very stressful situation -- they transferred their kids to an approved private school and followed all the requirements of the law only to have the district trap them in financial limbo because the school board voted to not follow the law.”

In Bixby, the local board of education on Friday night followed Owasso’s lead, also reversing its position against processing applications for Henry Scholarships. According to a  report from the Tulsa World, Bixby board members claimed they were taking the step because of a new willingness to “revisit” the legislation next year.

Two previous  interim studies of the new law have been held, and Rep. Nelson has outlined a few possible revisions to the historic law, including shifting responsibility for program oversight to the state Department of Education and clarifying existing provisions protecting public school districts from liability.


Other districts that voted this fall to defy the new law include Broken Arrow, Jenks,Tulsa and Union.

Doug Mann, lawyer for both the Broken Arrow and Jenks public school systems, has guided the regional (Tulsa area) school boards’ defiance of Lindsey’s Law. He is a leading partner at the controversial  Rosenstein Fist Ringold law firm, which has guided resistance to the measure, although it was “vetted” by both the state Education Department and Governor Brad Henry. The law firm's surging legal fees have been the subject of scrutiny in reports from the Broken Arrow Ledger.

Superintendent of Public Instruction Sandy Garrett, who presided over her last state board of education meeting this past week, has  criticized the local school boards for violating their oaths of office in the controversy.