LNH Scholarship - OSC Concurring Opinion 2-16-16

2016 OK 15
IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

SUPPEEll.COURT
CLARENCE G. OLIVER; EARL )
sTATE OF OKLAHOMA
GARRISON, AMY VARGUS; DAVID K. )
PENNINGTON; RAY HICKMAN, KIRBY A. )
FE-IB 1 6 2016
LEHMAN; STACY L. ACORD; ROBERT M. )
MICHAEL S. RICHIE
PETERS; RANDALL K. RABURN; )
THE APPELLATE COURTS
MELISSA ABDO; TIME GREEN; AND )
)
GORDON R. MELSON,
)
)
Plaintiffs/Appellees,
)
No. 113,267
)
V.
)
JOY HOFMEISTER, in her official capacity )
as State Superintendent of Public ) FOR OFFICIAL PUBLICATION
Instruction; THE OKLAHOMA , STATE )
DEPARTMENT OF EDUCATION; and THE )
OKLAHOMA STATE BOARD OF )
)
EDUCATION,
)
Defendants/Appellants. )
TAYLOR, J., concurring:

I agree that two provisions of the Lindsey Nicole Henry Scholarships for
Students with Disabilities Act (the Act), 70 0.S.2011, 13-101.1 & 70 0.S.Supp.
2012, 13-101.2, do not run afoul of Article II, Section 5 of the Oklahoma
Constitution.
This Court has spoken directly on the issue now before it in Murrow Indian
Orphans Home v. Childers, 1946 OK 187, 171 P.2d 600. Murrow did not hinge on
whether the payment was made directly or indirectly to the religious institution. The
plaintiffs in Murrow questioned payments made to a Baptist supported orphanage
for the housing and care of dependent children of this state. Id. 112, 5. The care of
these needy children was mandated by this State's Constitution. Id. If 6. The
orphanage's yearly cost per child was $225 to $250, and the state's payment to the
orphanage per child was $70 under a contract with the orphanage. Id. IT 2. This
Court determined that "so long as [the payments] involve the element of substantial
return to the state and do not amount to a gift, donation, or appropriation to the
institution having no relevancy to the affairs of the state," they do not violate Article
II Section 5 of Oklahoma's. Constitution. In Murrow, the orphanage did not benefit
in that it expended more on a child's care than it received from the state coffers. We
reiterated in Burkhardt v. City of Enid, 1989 OK 451115, 771 P.2d 608, 612, that the
key factor in determining an Article II, Section 5 violation was where the
governmental entity making a payment to a religious institution receive a substantial
benefit in return.
Here, the services for special needs children is mandated by the federal
government. The Act is religion neutralit treats religious private schools the same
as non-religious private schools. The Plaintiffs had the burden to show that the
religious schools benefitted and that the state did not receive a substantial benefit,
and they failed to present any evidence. The facts here are no different than the
state making payments to a private institution, although religious, to 'care for needy,
state-dependent children when those payments fail to cover the full cost of their
care.
2
The facts here are no different than the State sending inmates of a state
prison to a church-affiliated hospital for medical care. The facts here are no different
than a state Medicaid recipient being treated at a church-affiliated clinic. The facts
are no different than a church-owned construction company building a road or a
bridge for the State. None of these examples have anything to do with religion. They
all are simple contract situations. A fee for service in which the State contracts
required services to a non-governmental entity. It has nothing to do with religion. It
has everything to do with fee for service and a mutual benefit contract.
Under the Lindsey Nicole Henry Scholarships, the State is simply contracting
with private schools to perform a service (education of children with special needs)
for a fee. The State receives great benefit from this arrangement that has nothing to
do with religion. It has to do with education and caring for children with special
needs, whose education is the responsibility of the State.
It should be noted that the two private schools who are the largest receipients
of these scholarship dollars have no religious affiliation. Andrea Eger, Public Money
to Private Schools: Legal Limbo Persists for Scholarship Students with Disabilities,
Tulsa World, Oct. 18,2015, available at http:J/www.tulsaWorld.com/news/education/
public-money-to-private-schools-legaldimbo-persists-for-scholarship/articleLac86
4254-5dbb-5206-b9dc-1 f2407797352.html. The Tulsa World article also reported
that these scholarships do not cover the full cost of the private school tuitionfurther
evidence of benefit to the state. Id.
3
The fact that the scholarship payments are made to the parents and then
passed on by endorsing funds over to the private schools is irrelevant. It is still a feefor-service arrangement that benefits the student, parents, and the State. The State
has determined that it is economically efficient to contract its responsibility to these
children with special needs to private schools.
There is a presumption that statutes are constitutional and that those
challenging a statute as unconstitutional have a heavy burden. Liddell v. Heavner,
2008 OK 6, If 16, 180 P:3d 1191, 1199-1200. The Plaintiffs failed to put forth
evidence that the state did not receive a substantial benefit from the scholarship, the
only factor this Court has articulated in scrutinizing legislation as violative of Article
II, Section 5.
The Lindsey Nicole Henry Scholarships are simply fee-for-service contracts
for a very narrowly defined group of children with disabilities. There is nothing
unconstitutional about this underArticle II, Section 5. The benefit of the arrangement
is primarily to the State. There is clearly substantial benefit to the State of Oklahoma.
Burkhardt, 1989 0K45, ig 15, 771 P.2d at 612.

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2016 OK 15

IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

TAYLOR, J., concurring:

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