By Bob Allen, Baptist News Global and BJC Staff Reports
The Oklahoma Supreme Court ruled Feb. 16 that a school voucher program for students with disabilities is constitutional, over objections from the Baptist Joint Committee and others that it amounts to indirect taxpayer funding of parochial schools.
The state high court said the Lindsey Nicole Henry Scholarships for Students with Disabilities Program does not violate a ban in the state constitution on direct or indirect use of public funds for religious organizations because parents, not the government, determine where to send their children to school.
The court rejected arguments that because the vast majority of private schools qualified to accept the scholarships are religious, the program is tantamount to state support and control of religion, thereby violating an article in the Oklahoma constitution stating: “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.”
A friend-of-the-court brief signed by the BJC, Americans United for Separation of Church and State, the American Civil Liberties Union, ACLU of Oklahoma and The Interfaith Alliance Foundation argued unsuccessfully that Oklahoma’s “no-aid” clause was enacted because of historical attempts to use federal money to pressure Native American parents to enroll their children in Christian schools. That effort was an attempt to assimilate, by converting to Christianity, a population relocated during the Trail of Tears death march following the Indian Removal Act of 1830.
Other groups, including the Becket Fund for Religious Liberty, argued the real agenda behind the Oklahoma law and similar laws passed in other states was failure in 1875 of an amendment to the U.S. Constitution proposed by Republican Congressman James G. Blaine from Maine prohibiting the use of public funds by any religious school.
A Becket Fund brief said state Blaine amendments had their genesis “in anti-Catholic bigotry of the mid-19th century” and represent a shameful chapter in American history that needs to be repudiated.
The justices didn’t address the amendment’s history but said they were unconvinced that there is constitutional significance to the fact that more students receiving the scholarships attend sectarian private schools than schools that are non-sectarian.
The high court was persuaded by the fact that scholarship funds “are paid to the parent or legal guardian and not to the private school.” It is the parent “who then directs payment by endorsement to the independently chosen private school,” the court said, without any control or direction of the state, breaking “the circuit between government and religion.”
The scholarships, authorized by a state law passed in 2010, are named after Lindsey Nicole Henry, infant daughter of former Gov. Brad Henry, who died in 1990 from spinal muscular atrophy.