Oklahoma Council of Public Affairs

Attorney General: Oklahoma Department of Education Acted Illegally

December 3, 2020

(Oklahoma Council of Public Affairs) – An official opinion issued by the office of Attorney General Mike Hunter concludes the Oklahoma State Department of Education (OSDE) acted illegally when it imposed new regulations on a state scholarship program for children with special needs.

To serve beneficiaries of the Lindsey Nicole Henry (LNH) Scholarships for Students with Disabilities program, the OSDE regulations required private Christian schools to have policies that barred discrimination based on sexual orientation or religious affiliation, among other things. Those regulations effectively banned participation by many schools that adhere to historic Christian teachings by requiring that teachers be professing Christians, for example.

Hunter’s opinion concluded the OSDE rule “misinterprets both federal law and the statute authorizing the Henry Program, and was therefore beyond the authority of the Department to promulgate under the Administrative Procedures Act. Accordingly, the rule is not enforceable to the extent it adds to the requirements set forth in statute.”

The Lindsey Nicole Henry Scholarships for Students with Disabilities program provides scholarships to students with special needs and to foster children, allowing them to attend private schools. The LNH law requires that participating private schools comply with the antidiscrimination provisions of a section of federal law that bars discrimination “on the ground of race, color, or national origin.” Those are the only three categories listed.

However, under the leadership of State Superintendent of Public Instruction Joy Hofmeister, the OSDE drafted new regulations in 2019 that expanded that list to cover nine categories, including “religion” and “sexual orientation.” The additions, made nine years after the program was created, were advanced at the OSDE before Gov. Kevin Stitt’s appointments to the State Board of Education began their service.

Agency officials claimed the new restrictions were required due to an executive order issued during the administration of former President Bill Clinton.

However, Hunter’s opinion noted that “federal statutes cannot be amended or expanded by Executive Order” and also said the text of state law “is clear” because the federal law referenced prohibits discrimination only on the basis of “race, color, or national origin.”

“No other protected classes are mentioned and the text has remained unchanged since the creation of the Henry Program,” Hunter’s opinion stated. “Thus, as a straightforward textual matter, private schools that seek to participate in the Henry Program must not discriminate on the basis of ‘race, color, or national origin.’ Nothing else is required … with respect to nondiscrimination.”

Hunter’s opinion also noted that federal courts have “repeatedly indicated” the section of federal law referenced by the LNH statute “covers only the classes expressly listed in the statute.”

Hunter’s opinion also pointed out that the LNH law “explicitly prohibits regulations that exceed the express statutory criteria for schools to participate in the Henry Program.”

“Accordingly, in determining a school’s eligibility to participate in the Henry Program, the Department must ensure the school does not discriminate on the grounds of race, color, or national origin, but the Department cannot exclude the school from the Henry Program solely because the school makes distinctions on other grounds,” Hunter’s opinion stated.

Generally, public officials are required to act in accordance with an attorney general opinion unless or until the opinion is set aside by a court.

Hunter’s opinion echoes a previous Oct. 21 memo issued by his office to OSDE. Officials at the agency publicly posted that memo in November, then pulled it off the agency’s website, claiming attorney-client privilege meant it was not a public record.

Due to the “sexual orientation” and “religion” anti-discrimination regulations, the State Board of Education previously declined to approve the application of Christian Heritage Academy to serve LNH recipients and instead requested the opinion from Hunter’s office.

At that time, some state board members said the agency’s LNH regulations should be revoked immediately if Hunter weighed in against them.

The group’s next meeting is scheduled for Dec. 17.

Hofmeister’s office did not respond to a request for comment by the time of publication.

Attorneys at the Liberty Justice Center, which focuses on constitutional First Amendment rights including free-speech and freedom-of-religion cases, have closely followed the debate over OSDE’s treatment of private Christian schools seeking to serve LNH students.

A senior attorney at the Liberty Justice Center praised Hunter’s opinion.

“We’re glad to see the attorney general confirm what should have been obvious all along: Oklahoma law protects the right of these schools to participate in the LNH scholarship program,” an LJC attorney said. “The bureaucrats here were operating outside the law, to the detriment of these special-needs students and their families. The Board should promptly implement the Attorney General’s decision and ensure these schools can immediately start serving their LNH students.”