Oliver v. Hofmeister

• Court: Oklahoma Supreme Court
• Writing for the Court: WATT, J.
• Citation: Oliver v. Hofmeister, 368 P.3d 1270 (Okla. 2016)
• Decision Date: 16 February 2016
• Docket Number: No. 113,267.,113,267.
• Parties: Clarence G. OLIVER ; Earl Garrison, Amy Vargus; David K. Pennington; Ray Hickman, Kirby A. Lehman; Stacy L. Acord ; Robert M. Peters ; Randall K. Raburn; Melissa Abdo ; Tim Green; and Gordon R. Melson, Plaintiffs/Appellees, v. Joy HOFMEISTER, in her official capacity as State Superintendent of Public Instruction; The Oklahoma State Department of Education; and The Oklahoma State Board of Education, Defendants/Appellants.

368 P.3d 1270

Clarence G. OLIVER ; Earl Garrison, Amy Vargus; David K. Pennington; Ray Hickman, Kirby A. Lehman; Stacy L. Acord ; Robert M. Peters ; Randall K. Raburn; Melissa Abdo ; Tim Green; and Gordon R. Melson, Plaintiffs/Appellees,

v.Joy HOFMEISTER, in her official capacity as State Superintendent of Public Instruction; The Oklahoma State Department of Education; and The Oklahoma State Board of Education, Defendants/Appellants.

No. 113,267.

Supreme Court of Oklahoma.

Feb. 16, 2016.

Patrick R. Wyrick, Office of the Attorney General, Oklahoma City, Oklahoma, for Appellant.

Sarah A. Greenwalt, Office of the Attorney General, Oklahoma City, Oklahoma, for Appellant.

Frederick J. Hegenbart, Tulsa, Oklahoma, for Appellees.

J. Douglas Mann, Tulsa, Oklahoma, for Appellees.

Jerry A. Richardson, Tulsa, Oklahoma, for Appellees.

Andrew W. Lester, Edmond, Oklahoma, for Amicus Curiae.

Carrie L. Vaughn, Edmond, Oklahoma, for Amicus Curiae.

Hossein Farzaneh, Edmond, Oklahoma, for Amicus Curiae.

Ellen K. Spiropoulos, Oklahoma City, Oklahoma, for Amicus Curiae.

Eddie Foraker, McAlester, Oklahoma, for Amicus Curiae.

Richard D. Komer, Arlington, Virginia, for Amicus Curiae.

Emily D. Jennings, Tulsa, Oklahoma, for Amicus Curiae.

William H. Hickman, Norman, Oklahoma, for Amicus Curiae.

Brady R. Henderson, Oklahoma City, Oklahoma, for Amicus Curiae.

Ryan Kiesel, Oklahoma City, Oklahoma, for Amicus Curiae.

Andrea R. Kunkel, Oklahoma City, Oklahoma, for Amicus Curiae.

Tammy T. Carter, Alexandria, Virginia, for Amicus Curiae.

Eric S. Baxter, Washington, D.C., for Amicus Curiae.

Diana M. Verm, Washington, D.C., for Amicus Curiae.

Asma T. Uddin, Washington, D.C., for Amicus Curiae.

Gregory M. Lipper, Washington, D.C., for Amicus Curiae.

Geoffrey G. Slaughter, Indianapolis, Indiana, for Amicus Curiae.

Russell C. Menyhart, Indianapolis, Indiana, for Amicus Curiae.

Steven K. Balman, Tulsa, Oklahoma, for Amicus Curiae.

OPINION

WATT, J.

¶ 1 Oklahoma taxpayers filed a declaratory judgment action seeking a permanent injunction against Defendants, Joy Hofmeister, the State Superintendent of Public Instruction, the Oklahoma State Department of Education; and the Oklahoma State Board of Education, (the "State")¹ to enjoin the payment of tuition to private sectarian schools alleging the "Lindsey Nicole Henry Scholarships for Students with Disabilities Act," 70 O.S. 2011, § 13–101.1 and 70 O.S. 2012 Supp., § 13–101.2, (the "Act" or "Scholarship Program") violates several articles of the Oklahoma Constitution. On summary judgment, the trial court determined that the Act violates only Article II, Section 5 of the Oklahoma Constitution and granted an injunction. Defendants appealed, and we retained the case.

¶ 2 Oklahoma taxpayers, Clarence G. Oliver, Jr., Earl Garrison, Amy Vargus, David K. Pennington, Ray Hickman, Kirby A. Lehman, Stacy L. Acord, Robert M. Peters, Randall K. Raburn, Melissa Abdo, Tim Green and Gordon R. Melson, ("Taxpayers") assert the Act violates the Oklahoma Constitution and is invalid. They challenge the Act, 70 O.S. 2011, § 13–101.1, a state funded scholarship provided to students with disabilities to attend a private school of choice instead of the public school they currently attend. Taxpayers seek to enjoin the State permanently from paying any public funds pursuant to the Act.

¶ 3 Both parties filed for summary judgment. The trial court granted in part and denied in part the parties' motions, finding the Act was constitutional on all challenged grounds except for one. The trial court entered a narrow Order ruling the Act violated the Oklahoma Constitution, Article II, Section 5, only to the extent it authorizes public funds to pay the cost for students to attend private sectarian schools. This provision of the Constitution has been referred to as the "no aid" clause, prohibiting public money from being used for the benefit or support of religion. An injunction was issued to prevent payment to private religious schools, with no impact on the payment to private non-sectarian schools.²

¶ 4 The State appeals and argues for reversal on the basis that: (1) the payment to a sectarian school is permitted because it is for a valid public purpose and in exchange for consideration; and (2) the district court's construction of the Act creates a religiosity distinction violating the U.S. Constitution's freedom of religion clause.³ Taxpayers urge that Article II, Section 5 is an absolute bar to any payment to a sectarian educational institution, and payment is tantamount to "State" support and control of religion, thereby violating the Oklahoma Constitution. We reverse the district court's decision in part and find the Act does not violate the "no aid" clause. Accordingly, we do not reach the State's argument relating to the religiosity distinction in violation of the U.S. Constitution.

I. STANDARD OF REVIEW

¶ 5 Plaintiffs carry a very heavy burden of proof to establish their contention that the Act violates Article II, Section 5 of the Oklahoma Constitution. "A legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably and plainly inconsistent with the Constitution." Rural Water Sewer and Solid Waste Management v. City of Guthrie, et al., 2010 OK 51, ¶ 15, 253 P.3d 38, 44 ; citing Kimery v. Pub. Serv. Co. of Okla., 1980 OK 187, ¶ 6, 622 P.2d 1066, 1069. We are guided by well-established principles of statutory construction and "[e]very presumption is to be indulged in favor of constitutionality of a statute." Thomas v. Henry, 2011 OK 53, ¶ 8, 260 P.3d 1251, 1254. Whenever possible, this Court favors a statutory construction that upholds its constitutionality. Rural Water, supra. at ¶ 15, 253 P.3d at 44, also see, Kimery, supra., at ¶ 6, 622 P.2d at 1069.

¶ 6 Summary judgment is proper when there are no disputed material facts and the trial court has only issues of law to consider. EOG Resources Marketing v. Oklahoma State Bd. Of Equalization, 2008 OK 95 ¶ 13, 196 P.3d 511, 518–519. When the trial court's grant of summary judgment involves only legal questions, the standard of review is de novo. Id.

LEGAL ANALYSIS

Lindsey Nicole Henry Scholarship Act

¶ 7 Oklahoma public school districts are required to provide education and related services to all children with disabilities. 70 O.S. 2011 § 13–101.⁴ Following a statute amendment in 1993, each school district has had the option to provide these services or delegate this responsibility and enter into a written agreement with a private institution to provide the mandated services.⁵ Id. Thus, for more than twenty years, each school district has had the statutory authority to decide whether it would provide this education or enter into a contract with a private institution to provide the required educational needs to students with disabilities. When the Lindsey Nicole Henry Scholarship Act was enacted in 2010, the legislature simply allowed parents and legal guardians the same right that school districts already enjoyed, the choice to use state funds to contract with an approved private institution for special education services. 70 O.S. 2012 Supp., § 13–101.2.

¶ 8 The Act provides money through scholarships to eligible students to offset tuition costs at participating private schools. 70 O.S. 2012 Supp., § 13–101.2(A). Participation in the scholarship program is entirely voluntary with respect to eligible students and their families. Each family independently decides without influence from the State whether to enroll their child in the scholarship program or continue with specialized services at their current public school.

¶ 9 To qualify for the scholarship, the student must meet specified eligibility requirements and the student's parent or legal guardian must follow the application process. In general, to be "eligible", the student must: (1) be a student with a "disability" as defined by 70 O.S. 2011 § 13–101 ; (2) have attended the prior school year at a public school; and (3) have an individualized educational plan ("IEP") in place prior to the request for a scholarship. 70 O.S. 2012 Supp., § 13–101.2(A). The school district must have reported the student as having been enrolled during the preceding school year. 70 O.S. 2012 Supp., § 13–101.2(B)(1).

¶ 10 The parent or legal guardian has the option to submit an application to the Department requesting the scholarship. Before application, the student must be accepted by an approved private school selected by the parent or legal guardian. 70 O.S. 2012 Supp., § 13–101.2(A). If the Department determines the student meets the eligibility requirements, the scholarship will be awarded and remain in effect until such time as the child returns to a public school. 70 O.S. 2012 Supp., § 13–101.2(B). Acceptance of the scholarship has the same effect as a parental revocation of the federally guaranteed rights for specialized education services. 70 O.S. 2012 Supp., § 13–101.2(F). The public school is then relieved of the associated state and federal mandates to provide specialized educational services and the associated financial costs.

¶ 11 Any private school, whether sectarian or non-sectarian, may participate in the scholarship program and accept eligible students so long as the school meets statewide educational standards, demonstrates fiscal soundness and meets health and safety requirements. 70 O.S. 2012 Supp., § 13–101.2(H). A school becomes "approved" by fulfilling the outlined criteria. The Act is void of any preference between a sectarian or non-sectarian private school. We find there is no influence being exerted by the State for any sectarian purpose with respect to whether a private school satisfies these requirements.

¶ 12 Although the Act is religion neutral, Taxpayers urge there is constitutional significance because there are more students attending sectarian private schools than non-sectarian. We disagree.

¶ 13 This same concern was raised and dismissed by the U.S. Supreme Court in an earlier school voucher case finding "the...