Lindsey Henry Scholarship lawsuit a defining case and controversy

By Andrew C. Spiropoulos 

The Journal Record
June 7, 2012

The Oklahoma Supreme Court recently announced that it will hear the appeal by parents of disabled children of the decision by a state district court judge that the state’s Lindsey Nicole Henry Scholarship for Students with Disabilities is unconstitutional because it violates our state constitution’s provision governing the proper relationship between religion and the state.

There is, however, another vital constitutional principle at stake in this case. Some consider this other principle to be a legal technicality, a senseless barrier preventing the courts from settling our political controversies. But adhering to this principle is indispensable to the maintenance of the rule of law, and bending or even ignoring it, as the school districts in this case have asked the courts to do, threatens the legitimacy of judicial authority.

Americans are willing to grant judges their great authority to have the final say on the meaning of the law on the condition that they only decide questions that are properly committed to them. A judge only may act when presented with what the U.S. Constitution calls a genuine “case or controversy.”

When is there a real case and controversy? The principle is easy to state, but hard to faithfully follow. Judges should only exercise their authority when the person or entity seeking relief has been injured by the defendant and the court, by issuing an order to the defendant, can remedy the harm.

In this case, the families who decided that the public schools failed to meet the needs of their children removed them from the public schools and asked the state Department of Education for a scholarship to attend a private school. The schools argue that they are hurt by the law because the law establishing the scholarship instructs the department to deduct the total amount of scholarship money from the general school aid budget. The schools, therefore, allege that, eventually, they will receive less money because of the scholarship program.

But that’s not true at all. The schools aren’t getting less money because of the scholarship program – no one is taking money from their account and giving it to the private schools. Remember that school aid is calculated per enrolled student. The schools are getting less aid because they have fewer students. It doesn’t matter why these parents left the school. No matter what, the result would be the same.

The schools, in essence, are suing the parents for doing what they had every right to do – leave the public schools. Nothing the parents have done, no more than when parents decide to leave the state for better economic opportunities, constitutes a legal injury to the schools.

Furthermore, even if the court invalidates the scholarship, it is unlikely that parents will send their children back to the place where they, at best, were neglected, and, at worst, bullied and abused. Even if the state is no longer allowed to help these parents, the court has no power to remedy the schools’ alleged harm. The public schools will still have fewer students and proportionately lower funding.

There is no need for the courts to involve themselves in this bitter political dispute. These school districts haven’t suffered any legal injury; they just don’t like the public policy embodied in the program and want the courts to use their power, legitimately or not, to impose their view on the majority.

Andrew C. Spiropoulos is a professor of law at the Oklahoma City University School of Law and the Milton Friedman Distinguished Fellow at the Oklahoma Council of Public Affairs.