Nelson Reacts to New Lawsuit against Special Needs Scholarships Law

OKLAHOMA CITY – A new legal challenge to the Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act filed yesterday represents “ideological hostility to the rights of parents to direct the education of their children,” according to the author of the bill that created the scholarships.

State Rep. Jason Nelson said the program helps children with special needs attend a private school of their choice by providing state-funded scholarships. It has been in place for three years. A lawsuit filed by two Tulsa-area school districts was tossed out by the Oklahoma Supreme Court in 2012 on the grounds that schools cannot sue on behalf of taxpayers. The new lawsuit targets the state superintendent, the state department of education and the state board of education. The Obama Administration filed a lawsuit against a similar law in Louisiana this year.

“I first heard about this latest lawsuit from a parent who is concerned about what will happen to her child now,” said Nelson, R-Oklahoma City. “This new lawsuit mirrors the previous one that was struck down just this past fall and many of the plaintiffs have ties to school districts but are suing as individuals this time.”

Nelson said there are two things about the lawsuit that stand out to him.

“First and most importantly, not one 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,” Nelson said. “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.

“Second, 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.

“There’s a fundamental disagreement here. Children do not exist to fund the institutions. The institutions exist to support and educate the children and when that doesn't happen, regardless of the reason, we have a moral obligation to do whatever is necessary to ensure those children get the education they need and that the taxpayers are paying for, regardless of where they receive that education.

“This law has benefitted the public school system by increasing per-pupil spending on students in the public school system every year it's been in existence. This is a fact that is easily demonstrated but universally ignored by opponents. One of the plaintiffs has a background in school finance. I’m amazed this fact has escaped him.”

Nelson noted that the lead plaintiff is employed by Oral Roberts University, which was allocated more than $380,000 in state-funded scholarships through the Oklahoma Tuition Equalization Grant program, or OTEG, for the current academic year.

“OTEG is virtually identical to the Henry Scholarship Program,” Nelson said. “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. He must be familiar with Jesus’ teaching, ‘Why do you look at the speck of sawdust in your brother's eye and pay no attention to the plank in your own eye?’

“If you use their actions as a guide, the opposition here and in the Louisiana case is about an ideological hostility to the rights of parents to direct the education of their children – not about legitimate legal concerns. There are many state programs that do exactly what the plaintiffs here claim is unconstitutional. The plaintiffs simply can’t see that this is not about funding institutions but about ensuring children get the best education possible regardless of where they get that education.”

Nelson said he looks forward to working with state Superintendent Janet Barresi, Attorney General Scott Pruitt, the state Board of Education, parents and other supporters to vigorously defend the law. 

“The Lindsey Nicole Henry Scholarship Program is a constitutional, common sense law that benefits the students using the program, the public school system and the taxpayers,” Nelson said. “I’m confident the law will ultimately be upheld.”

Short documentary about the Lindsey Nicole Henry Scholarship Program

Legislation to Deter School Lawsuits Against Students, Parents Passed House

OKLAHOMA CITY –Legislation that would discourage “abusive and frivolous” lawsuits by schools districts passed out of the House of Representatives today and now heads to the Senate.

House Bill 2160, by State Rep. Jason Nelson, would require school districts to pay students’ and parents’ court costs and attorney fees when they initiate civil action or proceedings against students or parents.

“We saw a disgusting abuse of power when the leaders of Jenks and Union schools targeted the parents of special-needs children with a completely bogus lawsuit that could only be understood as an intimidation tactic,” said Nelson, R-Oklahoma City. “I’ve visited with numerous people who shudder at the idea of a school district suing parents. These two districts eventually lost the case upon appeal with the Oklahoma Supreme Court, but it still angers me that they put these families through such an ordeal. The only thing that the parents could have been guilty of was doing what they thought was best for their child with special needs.”

The Jenks and Union school boards voted to sue the state attorney general to challenge the successful Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act. They never filed that lawsuit, but instead, without ever specifically voting to do so, sued parents who legally obtained scholarships through the new program.

“These two school boards had earlier voted to ignore the new State law and later voted to sue the attorney general to get their question in front of a judge,” Nelson said. “When that didn’t work they sued the parents without ever voting to do so specifically. They left that decision to the school superintendent and the school’s law firm. They didn’t even have the courage to vote in a board meeting to sue parents – it was shameful.”

Lindsey Nicole Henry Scholarships allow a student with a disability (such as 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.

Nelson said his legislation would deter schools from filing such lawsuits, which are inappropriate because schools serve the public and should not be persecuting students and parents.

“I never doubted that the lawsuit was inappropriate and the Oklahoma Supreme Court’s ruling confirmed that a school board should not be suing parents. My bill says that if a school district sues parents again, they will have to pay the court and attorney costs,” Nelson said.

HB 2160 passed out of the House by a vote of 55-37. The measure now heads to the Senate for consideration.

Tulsa's KOTV interviews parent sued by Jenks, Union Schools

Oklahoma House District 87 - Click here for link to News on 6 full story

NewsOn6.com - Tulsa, OK - News, Weather, Video and Sports - KOTV.com |

Oklahoma Supreme Court decision (Nov. 20, 2012)

Nelson Statement on Oklahoma Supreme Court Ruling on Lindsey Nicole Henry Scholarship (Nov. 20, 2012)

Updated: Well established case law says House Bill 3393 is constitutional (Nov. 20, 2012)

AG Statement on Lindsey Nicole Henry Scholarship Decision (Nov. 20, 2012)

Documentary on Lindsey Nicole Henry Scholarship (Aug. 1, 2012)

Jenks and Union Schools Continue Vendetta Against Children with Special Needs (Sept. 7, 2011)

Nelson Statement on Oklahoma Supreme Court Ruling on Lindsey Nicole Henry Scholarship

OKLAHOMA CITY – State Rep. Jason Nelson, R-Oklahoma City, issued the following statement regarding the Oklahoma Supreme Court ruling today that upheld the Lindsey Nicole Henry Scholarships for Students with Disabilities Program, reversing an earlier decision by a Tulsa district judge:

“The families who have been sued by the Jenks and Tulsa Union school districts for using the Lindsey Nicole Henry Scholarship program have even more reason to be thankful this Thanksgiving weekend. The decision by the Oklahoma Supreme Court validates what I and many other people have been saying since the lawsuit was filed – that the school districts lack standing and that their vindictive actions against these parents were without merit. I am grateful to the attorneys who have stood with these parents for their hard work and effective legal defense of the scholarship program.

“As recently as last week, I received an emotional e-mail from a parent who detailed how being able to use the scholarship has changed their child’s life for the better. I’ve never doubted that we were right on the law and it’s nice to have the confirmation of the Oklahoma Supreme Court. This is a program that saves the public school system money while benefiting children with special needs by giving them more educational options that meet their unique needs. Today’s ruling will allow these families to breathe a sigh of relief after months of uncertainty.”

Jenks and Union Schools Continue Vendetta Against Children with Special Needs (September 7, 2011)

Commentary: Attempt to blame Barresi continues embarrassing, unproductive trend

Oklahoma Capitol -- A September 30 story in the Sunday Oklahoman regarding employment turnover among public school superintendents revealed just how far the education establishment is willing to go to blame State Superintendent Janet Barresi for even the most innocuous occurrences.

According to the Oklahoman, Fort Gibson Public Schools Superintendent Derald Glover blames Superintendent Barresi and recent reforms she has supported for the turnover. Glover’s comments are noteworthy because he is chairman of the Cooperative Council for Oklahoma School Administration (CCOSA), an association of public school superintendents in Oklahoma.

Glover acknowledges circumstances at the district level are a factor in superintendent turnover, but he "believes there's a stronger force behind the resignations, retirements and firings."

Glover said, "We have a lot of reform being pressed down on us all at once ... I think that's why you're seeing more and more people get out of this profession and fewer and fewer getting in."

The Oklahoman reports that between 2006 and 2011 more than 300 superintendents resigned and another 218 retired or were terminated by local school boards. Glover's comments are inane since Barresi was in office for only one of the five years examined in the story. The peak year for resignations was 2008 when 75 superintendents resigned -- well before Barresi was elected.

Varnum Public Schools changed superintendents every year between 2006 and 2011 and twice last year. Watson Public Schools changed superintendents five times since 2006, while Holdenville Public Schools replaced its superintendent six times since 2006. Oklahoma City Public Schools has seen four superintendents leave since 2006, including two departures in 2008.

As chairman of CCOSA, Glover's comments make it clear they won't let common sense stand in the way of blaming Barresi for even the silliest and most remote grievance. The truth should compel CCOSA leaders to acknowledge that local control, old age and criminal charges have had more to do with superintendent turnover than Barresi.

Former Skiatook Superintendent Gary Johnson resigned in 2010 and later pled guilty to bribery charges. Former Broken Arrow Superintendent Jim Sisney was fired in 2008 and was recently indicted on bribery and conspiracy charges.

Many superintendents "resign" to avoid being fired, often agreeing to resign in exchange for an agreement by the school board to divert taxpayer money from the classroom to a contract buyout for the superintendent. 

In addition, many resignations resulted from superintendents moving to more lucrative districts as others retired or were terminated.

In a recent discussion about this topic I was told "the cause of the large Superintendent turnover in 2008 was the passage of ESIP in 2006. ESIP was a change in Teachers Retirement that allowed for past service credit salary levels to be increased. This legislation was supported by all the major groups representing school administrators. After passage many administrators used the provisions of this legislation to increase their retirement payments."

Superintendent Barresi’s election represented a demand by voters for higher expectations and more accountability in public education in Oklahoma. Barresi is not alone in her desire to improve student achievement. Gov. Mary Fallin and legislative leaders have worked hard to pass meaningful education reform laws in recent years.

By now it shouldn't surprise anyone that school superintendents are blaming Barresi for something as ridiculous and random as school superintendent turnover.

One thing is certain: superintendents aren't leaving because of pay cuts or the elimination of their positions (with rare exceptions). The education establishment has taken their dislike of Barresi to a new low.

Multicounty Grand Jury Indicts Former Broken Arrow Superintendent; Vendor

Indictments unsealed Thursday in Tulsa County

Attorney General Scott Pruitt

On Thursday, August 30, Attorney General Scott Pruitt posted the following statement and document links:

“Today’s indictments are the result of many months of investigation into practices by a former employee and a vendor of Broken Arrow Public Schools. I’m very grateful for the sacrifice made by multicounty grand jurors as well as the effort of state prosecutors and investigators in the Attorney General’s Office and the state Auditor’s Office in conducting a thorough investigation,” Attorney General Scott Pruitt said. “It is important that we remain vigilant in holding accountable those entrusted as public servants.” 

James D. Sisney_Indictment 2012.pdf

Windstream Corp Indictment_2012.pdf

Broken Arrow PS Audit FINAL.pdf

State Aid Allocation Increased to School Districts

The State Department of Education announced today that some state aid money previously held back to cover charter school enrollment is now being released to school districts. 

Some public school officials have engaged in unjustified, shrill criticism of Superintendent Janet Barresi over the amount of state aid money held back by the State Department of Education. They have largely failed to acknowledge that recent financial decisions are reasonable and responsible under current circumstances.

Last month the State Department of Education was required to set aside enough money to cover potential enrollment in charter schools, including some charter schools that were still in the application phase. At the time the initial allocations for school districts were required to be calculated the charter school enrollment numbers were not known. 

The Department of Education sent an email today notifying school districts of the amended initial aid allocation.

“As indicated this summer, now that August enrollment counts have been completed for public charter schools, the State Department of Education has adjusted initial state aid allocations and will be allocating an additional $9 million to all Oklahoma public school districts. Several public charter schools had lower enrollment numbers than initially anticipated, and several of the schools that applied for new charters this year will not open this semester.”

ACE appeals to be considered at special State Board of Ed meeting

Oklahoma Capitol - A special meeting of the State Board of Education has been called tomorrow, Friday, Aug. 3 at 10 a.m.

The special meeting was called so the Board could consider four Achieving Classroom Excellence appeals from Tulsa. These four appeals were held over from the last regular Board meeting. 

A law passed during the 2012 Legislative Session guarantees an appeal to the State Board of Education for students who are denied a standard diploma for failing to meet the ACE graduation standards. The special Board meeting is necessary because the law requires appeals to be acted on by the Board within 45 days. 

So far, the number of appeals submitted to the board is significantly fewer than was predicted by many who opposed the standards and were recently attempting to roll them back. The vast majority of the appeals received by the Board have come from students who were enrolled in school districts in Tulsa County. 

The class of 2012 is the first to have to meet the new graduation requirements. When the standards were passed in 2005, it was predicted that 22 percent of students graduating in 2012 would fail to meet the standards and that remediation costs would be significantly higher than has been the case. Early information indicates that more than 90 percent of seniors this year have met the standards. 

The board will hear public comment and is then expected to convene in executive session to discuss the appeals before returning to open session to vote.

The meeting will be held in the regular meeting room at the Oliver Hodge Building, 2500 N. Lincoln Blvd., Suite 1-20, Oklahoma City.

Henry Scholarships Documentary Showing Planned Next Week

The public is invited to a showing of a 30-minute documentary that describes how the Lindsey Nicole Henry Scholarships are changing the lives of Oklahoma families. The showing will be followed by a panel discussion on the future of the scholarships with law professor Andrew Spiropoulos and state Rep. Jason Nelson.

The even will be held Tuesday, July 31, 2012 at 7:00 PM at: 

Constitution Hall, Nigh University Center, University of Central Oklahoma
100 North University Drive, Edmond, OK 73034

Tickets are free but space is limited. Visit http://henryscholarships.eventbrite.com/ to reserve your seat. 

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.

60 Seconds From Parents Supporting A Program That Works

Please share this 60 second video about the Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act. 

This simple program is changing the lives of many children in Oklahoma for the better. A district judge ruled earlier this year that the 2010 law is unconstitutional. The Oklahoma Supreme Court agreed earlier this week to hear an appeal by parents who are being sued by two school districts for using the program to help their children. I hope you will support this program and let others know you think it is important that it be protected for the sake of special-needs children now and in the future. 

Board Of Education Hears Appeals About High School Diploma Requirements

Story at News9.com

Nelson "Flashpoint" Guest, DHS & Henry Scholarships Topics

I was the guest on the KFOR political news show "Flashpoint" yesterday. We discussed the Department of Human Services reforms and the Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act. 


2nd Segment on the Lindsey Nicole Henry Scholarships



3rd Segment on DHS Reforms

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) 

Fortunately, Jenks & Union Administrators Are Not Representative of All Educators

By state Rep. Jason Nelson, R-Oklahoma City, author of the Lindsey Nicole Henry Scholarship Act, printed in the Journal Record today.

OKLAHOMA CITY – Recently, defenders of administrators in Jenks and Union schools have claimed any criticism of them is somehow an attack on all educators.

Sorry, but that dog won’t hunt. The core issue is too easy to understand and the administrators are clearly in the wrong.

In a nutshell, these two districts are suing parents for doing what is best for their kids.

These parents are using the Lindsey Nicole Henry Scholarship Act, which 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.

Jenks and Union administrators don’t like the law. However, rather than properly challenging it in court, they chose to sue parents of special-needs children seeking scholarships.

It is inexcusable that district administrators would sue parents for being too involved in the education of their own children.

The proper way for them to challenge the law is to sue the state.

There’s an Oklahoma City attorney who routinely challenges state laws in court with some success.

If a private citizen can do it, surely these two administrators (and their expensive law firm) can figure it out.

They could have challenged the scholarship law in court before it went into effect more than a year ago. They didn’t.

The schools’ boards eventually voted to sue the state attorney general to challenge the law, but never did.

These administrators continue to reject legitimate avenues to challenge the law.

Instead, they are suing parents of children with very real special needs in an attempt to punish these families and intimidate others. Rather than work to provide quality educational opportunities for each child, Jenks and Union are attempting to “make an example” of families who already face significant challenges.

For these reasons, I have been an outspoken critic of Jenks and Union administrators. People are free to disagree, but to claim all teachers in Oklahoma should be lumped together with those administrators (as Scott Carter did in a recent column) slanders the reputation of every hard-working teacher in the state.

My criticisms have been directed at the administrators of these two districts and not the educators in my family or educators in general. To say otherwise is simply desperate political spin. I don’t need rhetorical misdirection to make my case. Apparently, defenders of these administrators can’t say the same thing.

Nelson: Jenks & Union Schools Should Get Used to Criticism

This release is in response to a Tulsa World news story today regarding Jennifer Carter's use of the word “dirtbags” in a tweet nearly a month ago.  Carter tweeted when she learned that administrators in the Jenks and Union school districts were suing parents of special-needs students who are using scholarships available through the Lindsay Nicole Henry Scholarships for Students with Disabilities Program Act.

Link to video

OKLAHOMA CITY – State Rep. Jason Nelson said the leaders of the Jenks and Union Public Schools should get used to criticism after targeting the parents of special-needs children with a frivolous lawsuit.

He said criticism is more than warranted in light of the districts’ apparent continued violation of state law and mistreatment of special-needs children.

“Apparently, Jenks and Union officials are shocked that anyone would call them ‘dirtbags’ for persecuting the families of children with special needs,” said Nelson, R-Oklahoma City. “I’ve got news for them: Get used to it. Oklahoma citizens will no longer stand by while wealthy school bureaucrats abuse their power.

“I believe these districts continue to violate state law and know their actions are indefensible - which is likely the reason they did not include ‘suing parents’ on any school board agenda,” Nelson said. “I’ve not heard one person defend suing parents outside the administrators of Jenks and Union schools. I’ve visited with numerous people who shudder at the idea of a school district suing parents – especially in this case – and many of them used far more colorful language to express their opinion.”

Several months ago, the Jenks and Union school boards voted to sue the state attorney general to challenge the successful Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act. However, they never filed that lawsuit, and instead suddenly sued parents who legally obtained scholarships as a result of the law.

Lindsey Nicole Henry Scholarships allow a student with a disability (such as 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.

“At the start of September, the amount spent on all students receiving these scholarships statewide was a combined total of $197,345 – far less than the combined salaries of the two superintendents at Jenks and Union,” said Nelson, who authored the scholarship law. “When you have school administrators obsessing over a month-old, offhand, one-word Twitter comment instead of working to provide each child a quality education, that suggests the school funds being wasted are those spent on administrators’ fat paychecks and not the pittance spent helping educate children with special needs.”

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.

Procedure for the Lindsey Nicole Henry Scholarship Reimbursement Application

Below is a memorandum issued by the State Department of Education to superintendents regarding the Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act.

This memo addresses the failure of some school districts to make required scholarship payments during the 2010-2011 school year. The memo establishes a procedure for reimbursement if a district did not comply and pay the scholarship funds as contemplated by statute. (Memo dated Aug. 3, 2011)

House Bill 3393 is a law (70 S.D. § 13-102.2) that became effective August 27, 2010. The bill created a scholarship for use at a private school accredited by the State Board of Education for students with Individualized Education Programs (IEPs).

HB 1744 amends the LNH Scholarship Act. HB 1744, subsection N, allows the OSDE to reimburse parents for scholarship funds they should have received; and then allows the OSDE to bill or adjust the state aid of districts that failed to make required scholarship payments, if a district did not comply and pay the scholarship funds as contemplated by statute.