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Questions Remain about Oklahoma Special Ed. Vouchers

A group of Oklahoma parents has dropped a lawsuit against four school districts over private school tuition for their children, who have disabilities, leaving a court challenge over the constitutionality of the vouchers in question.

Oklahoma's Lindsey Nicole Henry Scholarships for Students with Disabilities Act became law in June 2010, allowing parents to send children to private schools using public money. Initially, the law required school districts to reimburse parents for tuition. Parents claimed some districts refused to do so and sued the Broken Arrow, Jenks, Tulsa, and Union districts over their tuition.

Two of the districts countersued the parents, challenging the constitutionality of the vouchers.

In the meantime, the state legislature revised the law, charging the state department of education with issuing checks to parents rather than school districts.

That change led the parents to drop their suit, said Eric Rassbach, an attorney with the Becket Fund for Religious Liberties, a nonprofit, Washington-based law firm that represents people of all faiths in litigation, often against government entities. Many of the schools accepting vouchers in Oklahoma were religion-based.

"We got what we wanted from the amendments the legislature made," Mr. Rassbach said. He said the parents using vouchers wanted a better education for their children, not necessarily a religious one.

"From my clients' perspective, some of the districts were just warehousing the kids," he said.

As I've written before, parents who use private school vouchers should consider that they lose the protection of the federal Individuals with Disabilities Education Act when they enroll their children in private schools, even if they are using tax dollars to pay for it.

J. Douglas Mann, an attorney for the four school districts, told the Tulsa World that he considered the parents dropping their lawsuit a victory. "But any time the other side gives up and dismisses their case, it's a victory."

He said the districts' lawsuit in state court will continue and that he is confident that the law's constitutionality will be decided there. Several other states, including Arizona and Florida, have voucher programs for students with disabilities.

Mr. Rassbach wasn't convinced, however, that the law's constitutionality will be decided by the districts' suit, or that their case will even progress in court.

"If the school districts really and truly want to find out about the constitutionality of this program, they need to put up or shut up and sue the state."

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