Attorney General: Oklahoma Department of Education acted illegally

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.

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