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Mike Brake is a writer who recently authored a centennial history of Putnam City Schools. He served as chief writer for Gov. Frank Keating and for then-Lt. Gov. and Congresswoman Mary Fallin, and has also served as an adjunct instructor at OSU-OKC.

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One of the most significant and revolutionary school reforms ever enacted in Oklahoma was signed into law 10 years ago today.

But it began with conversations about a seemingly unrelated issue in the summer of 2008. A young Jason Nelson had launched his campaign for the state Legislature in northwest Oklahoma City. A former staff member for Gov. Frank Keating, Nelson was a novice at electoral politics.

“There was a lot of talk about mandating health insurance for children with autism,” Nelson recalled. As he knocked on doors throughout his district, he discussed that issue and encountered parents of special-needs children concerned about a range of services their children were—or were not—receiving.

Many of them, Nelson learned, felt they were not getting the service their children deserved from their local public schools.

“I made a commitment that I would try to find help for those families,” Nelson recalled. He did precisely that. Nelson’s commitment, with a boost from some unlikely sources, ultimately became the Lindsey Nicole Henry Scholarship Program for Children with Disabilities. The program allows parents of special-needs children to use a portion of the money allocated to their schooling to send them to accredited private schools. The average scholarship value in 2018-19 was $7,003, according to EdChoice, or 88 percent of the value of Oklahoma’s public school per-student spending.

“All of the horrible things that the opponents said would happen have not come to pass.”
—Former state Rep. Jason Nelson

Dramatic Saga

The Henry scholarship saga winds through tight legislative votes, sometimes acrimonious debates, and even ugly courtroom confrontations that actually saw two public school districts suing some of the parents they were pledged to serve.  

In the end, the program, with some needed expansions, now serves as a model for other states to follow.

But it was barely a glimmer on the legislative horizon in 2010 when Nelson, taking a cue from a previous bill that rapidly vanished, decided to propose a program that would allow parents of public school students being educated under an Individualized Education Program (IEP)—generally known as special education students—to transfer their child and the bulk of the child’s per-pupil funding to an accredited private school.

“I found that Democratic Representative Anstasia Pittman had introduced a similar bill,” Nelson said. This was initially surprising since educational-choice measures tended to draw more support from Republicans and often uniform opposition from Democrats. However, Rep. Pittman (D-Oklahoma City), along with Rep. Jabar Shumate (D-Tulsa) and others, was a member of the Legislative Black Caucus, and by 2010 minority lawmakers nationwide were beginning to enlist in school-choice movements in increasing numbers.

“So we scheduled a joint press conference to promote the bill,” Nelson said. Opposition was immediate and scornful from the traditional education lobby.

“They said there are no private schools that can handle special ed students,” Nelson recalled. “Then they said the bill would empty out the public schools. I thought those were mutually exclusive arguments. I never could figure how you could have it both ways.”

There was considerable legislative strategy in moving the bill from concept to reality. Senate author Patrick Anderson (R-Enid) enlisted the help of Republican Sen. Jim Williamson (R-Tulsa) in convincing Sen. Judy Eason-McIntyre (D-Tulsa). Thus the bill had bipartisan backing in both houses.

It was a tough slog in the state House. As John J. Miller later reported in a National Review cover story, “it looked like the Oklahoma state legislature was going to reject a school-choice bill to provide vouchers for learning-disabled students.”

Earl Sears, a Republican, announced his opposition on May 19—a bad blow, because Sears is a former principal and several of his GOP colleagues take their cues from him on education. Around 9:30 p.m. the next night, Sears’s phone rang. Jeb Bush was calling. “Excuse me, you mean the governor Jeb Bush of Florida?” asked Sears. The two men didn’t know each other and had not spoken previously, but they talked for 35 minutes. Bush urged Sears to support the bill, pointing out that an almost identical piece of legislation had become a successful law in Florida. “I tell you, he made an impact on me,” said Sears on the morning of May 21, when he described the conversation in a speech to fellow lawmakers. He switched his vote from no to yes. Hours later, the bill passed. “We couldn’t have done it without Sears,” says Brandon Dutcher of the Oklahoma Council of Public Affairs, a conservative think tank. “So it’s safe to say that we couldn’t have done it without Jeb Bush.”

In the end, the bill passed the House with just three votes to spare and won initial approval in the Senate by a single vote. Along with Pittman and Shumate, two other House Democrats, Rebecca Hamilton (D-Oklahoma City) and Wade Rousselot (D-Okay), helped provide the margin of victory.

Shumate was so enthusiastic about the bill that he later appeared in a documentary about the program, saying there was “no better program to give parents hope.”

Now it was up to Gov. Brad Henry to either sign or veto the bill. A Democrat in his final year of office, Henry would be unique if he assented to the legislation.

“To that time I was not aware of any Democratic governor anywhere in the country who had signed a school voucher bill,” Nelson said.

Nelson approached the Governor and asked for his support.

“He said it was the right thing to do,” Nelson said. Most people at the state Capitol were aware that Henry and his wife Kim had lost a twin daughter, Lindsey Nicole, to a rare neuromuscular condition in infancy. They were longtime supporters of various causes offering services and hope to similarly afflicted children and their families.

There had been other backroom discussions underway as the bill moved from the Senate back to the House for final approval of some minor amendments. Gerald Adams, Henry’s chief of staff, was tracking its progress, and conservative writer Pat McGuigan was lobbying him on its behalf.

“The Governor’s support was absolutely crucial,” McGuigan said. “He had always been moderately favorable to school choice.”

At the same time, a Henry staffer was approached and asked if the Governor would mind if the bill and the program it would create would be named for his late daughter.

He would not.

As Henry affixed his signature to the bill, Nelson said his phone rang from parents celebrating the action. They had been calling throughout the legislative session, affirming his belief that the bill was needed.

“A lot of parents couldn’t afford to seek out alternatives to the public school if they felt their special ed child was not being served,” he said. “I remember one call from a special education teacher from one of the largest school districts in the state. She said her child was not getting the support she needed and was all in favor of the bill.”

Other callers related “really harrowing stories” about poor service for kids on IEPs.

“The consensus was that public schools could not be all things to all people and that for some families another option was the right choice,” Nelson said. He also noted that out of perhaps 100,000 students who would be eligible for the Henry scholarships, no more than a thousand or so a year would actually apply.

“That told me and tells me today that most schools do a pretty good job,” he said. Most, but hardly all.

With Henry’s signature the bill became law, but that was only the beginning of a lengthy battle that would get ugly at times, thanks to the reaction of some members of the education lobby.

First, several local school boards passed resolutions declaring their intention to ignore the law and to refuse to allow any students even to apply for the scholarships. Parents in those districts filed lawsuits, and Nelson had to file and pass a subsequent bill in 2011 that required the program to be administered at the state level, rather than by local districts intent on sabotaging it.

Then two districts actually filed lawsuits against individual parents who sought to use the Henry scholarship program for their children.

“That was just horrible,” Nelson said. “The parents didn’t create the law. It was just an outrageous action. They were trying to intimidate parents from applying.”

Those suits bounced through state courts for several years until the Oklahoma Supreme Court finally ruled that the districts did not have legal standing to seek to obstruct a state law. A second suit filed against the Oklahoma State Department of Education seeking to block its administration of the program was finally rejected in February of 2016, when the Oklahoma Supreme Court unanimously declared the program to be constitutional.

“All of the horrible things that the opponents said would happen have not come to pass,” Nelson said. Most significantly, claims that any form of voucher would “destroy public schools” were simply unfounded.

“Most of the parents I have talked with would rather their kids had been in public schools, riding the same bus with their siblings,” he said. “This was not a case of parents being against public education. It was a case of parents wanting to ensure that their special-needs children received the best possible services. At the end of the day this program is about finding the best fit for every student.”

Why the Need?

Roughly 14 percent of students in Oklahoma schools in any given year are classified as special education students, meaning they are being educated under an Individualized Education Program (IEP) mandated by the federal Individuals With Disabilities Education Act (IDEA). Simply put, any child with any disability that has an impact on learning falls under IDEA.

State aid allocated to schools on a per-pupil basis is adjusted upward for IEP students. If School A is paid $6,000 in state aid for Johnny, it may receive $8,000 for Billy who has a hearing problem and autism.

Unfortunately, every child is different and may require different levels of personalized attention or tutoring. And many public schools are poorly equipped to deliver those services.

One reason is the proliferation of small school districts that has long plagued school finance in Oklahoma. With hundreds of districts under 1,000 in population, it is clear that few of them can maintain an adequate staff of specially trained and dedicated special education teachers for every grade level. For example, a school with 450 students in grades K-12 will have perhaps 35 students per grade, of whom only three or four are being educated under IEPs. That district simply cannot afford to hire 13 special ed teachers to instruct three or four students each.

In a 2018 article in Education Week, authors Mark Alter, Marc Gottlieb, and Jay Gottlieb noted that the U. S. Department of Education had concluded that “fewer than half of the states are meeting their obligations under IDEA.”

They also cited 2015 results from the National Assessment of Educational Progress that showed that just eight percent of eighth graders with disabilities were proficient in reading and math. High school seniors with disabilities scored just 12 percent proficiency in reading and six percent in math. Those abysmal results indicate that too many public schools are giving special education short shrift.

The authors note that too many public schools lack staff trained in assessing students with disabilities, that school IEP teams too often ignore or even misinform parents about the needs of their children, that many schools place IEP students in the wrong level of inclusion with standard classes, and that too many schools do a poor job of providing and recording “pull out” services like occupational therapy given to IEP students.

They cited a report saying “the parents were most angered because they felt the teachers did not respect them.” That is less of an issue in a private school where parents are paying tuition and, hopefully, are in closer contact with faculty. It is also why many parents seek a private school education for their children in the first place.

As mentioned above, some Oklahoma school districts had actually sued parents seeking to qualify their children for the Henry scholarship program. The only fair conclusion one can draw from that is that some public school administrators regard children in their care as revenue units, which is not an encouraging message for parents of children with disabilities.

‘A Godsend’

Private school administrators have been among the most enthusiastic boosters of the Henry program.

“It has been a godsend for so many families,” said a principal in Norman whose school is currently serving 11 Henry scholarship students who would “probably have been unable to attend here without it.”

Daniel Birnbaum, principal of First Lutheran School in Ponca City, said “It’s been great for the kids we have been able to help.”

Rocky Clark, superintendent of Wesleyan Christian School in Bartlesville, said his school currently has two Henry scholarship students and has had some almost every year.

“It’s a huge benefit to the families,” he said. “We have had multiple kids who did not do well in the public schools who, because of the resources we can offer like smaller classes and the ability to pull them out for special attention, do much better here,” he noted. 

When Elizabeth Donohue and her family moved to Oklahoma from Illinois, they knew two things. They wanted for their two children the traditional Catholic schooling both parents had received. And they especially desired a safe and nurturing school environment for their daughter Ella who had a profound hearing disability.

“We connected with Hearts for Hearing and Sooner Start for Ella but then we found out about the Henry scholarship program,” Mrs. Donohue said. “I had decided to stay at home but we wondered how we were going to pay tuition for both children. The Henry scholarship made it possible for both Ella and her older brother to be in the school of our choice.”

A second benefit for Ella is the smaller class sizes offered to her and her fellow kindergarteners at All Saints Catholic School in Norman, where she is one of 11 Henry scholarship students this year.

Not only is most of her tuition covered by the Henry scholarship, Mrs. Donohue said it frees funds to pay for services she needs to accommodate her hearing loss.

Ella’s class of 15 is about half as large as she would encounter in a public school, she said.

“I just never would have thought something like this program would be an option,” Mrs. Donohue said of the Henry scholarship. “It needs to be advertised more!”

Popular Program Expands

As more and more parents sought help for their children on IEPs from the Henry scholarship program, a state senator was moving quietly in 2017 to amend and expand it.

“I had been a foster parent and managed a children’s shelter for six years, and I knew that so many children in state custody had been through a great deal of trauma,” recalled former state Sen. A. J. Griffin. “We were doing a horrible job—not always but often enough—in serving these kids in public schools.”

Griffin, now the director of government and community affairs at Paycom, noted that traumatized children in state custody “often need a smaller, calmer environment like that offered by a private school.” She said her own children were attending a private Christian school where she noted that a number of foster parents were paying from their own pockets to send the children in their custody there.

“The children in state custody come from trauma, that’s the reason they are in state custody in the first place,” Griffin said. Hence the bill she filed in 2017 to expand Henry scholarship eligibility to children in foster care or those who have been adopted out of state custody.

Source: EdChoice

According to data from the Oklahoma Department of Human Services, there are approximately 8,000 children in foster care at any one time, with some 2,000 adopted annually. That potential population was large, but as with those children on IEPs who would be eligible for Henry scholarships, only a small proportion of the newly eligible foster/adopted children were expected to apply. They were also the kids most likely to be helped by transitioning into a private school environment with the kind of intensive attention those schools are often able to provide.

Griffin’s bill passed easily—43-0 in the Senate and 87-0 in the House. (“It’s hard to vote against foster kids,” she said.) The minimal opposition came from the usual opponents of any program that threatens to divert children from public schools. 

It also helped that lawmakers had observed the success of the original Henry program as envisioned by Jason Nelson, and that their constituents support the program. A statewide survey of likely Oklahoma voters in 2018 showed that 61 percent support the Henry scholarship program while just 18 percent expressed opposition. Among the program’s foes: the liberal Tulsa World, which editorialized in 2016 that the “Lindsey Nicole Henry Scholarship Program was a bad idea when it was first written, and we continue to oppose it.”

Nevertheless, the Henry scholarship program continues to grow. It has a separate page on the State Department of Education’s website, with application instructions (the deadline each year is December 1) and a list of nearly 70 approved accredited private schools eligible for enrollment. Applicants under the various segments of the program simply need to prove their eligibility and present a letter of acceptance from the private school of their choice, after which the application is assured of approval.

Ten years on, Jason Nelson is smiling. He says the program is his finest legacy as an elected official and he hopes all Oklahoma families will one day be able to send their children to the school of their choice, public or private.

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