The State Board of Education has shelved the request of a Christian school to participate in a program for children with special needs and instead requested an official opinion from the state attorney general.

The board voted to ask the attorney general if an Oklahoma State Department of Education (OSDE) regulation—which requires schools to adopt certain policies regarding sexual orientation as a condition of participation in the Lindsey Nicole Henry (LNH) Scholarships for Students with Disabilities program—is legal.

The board took that action even though a memo from the attorney general has already indicated the regulation is illegal.

At the same meeting the board shelved the application from Christian Heritage Academy, the group approved an application from a similar Christian school, Altus Christian Academy, even though Altus Christian Academy does not appear to be in compliance with the OSDE’s “sexual orientation” regulation.

The LNH program provides state scholarships for students with special needs, foster children, and adopted children 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.

However, under the leadership of State Superintendent of Public Instruction Joy Hofmeister, the OSDE drafted new regulations in 2019 that expanded that list to cover nine categories, including “religion” and “sexual orientation.” The additions were made nine years after the program was created.

Brad Clark, general counsel for the Oklahoma State Department of Education, has said the additions were made based on an executive order issued during the presidential administration of Bill Clinton.

As a result, when Altus Christian Academy and Christian Heritage Academy applied to serve LNH students earlier this year, they were denied by the State Board of Education.

That denial may have opened the door for both schools to sue the state. A recent memo from the office of the attorney general indicates the schools have a high likelihood of success.

That Oct. 21 memo sent to officials at OSDE by attorneys in the Office of the Attorney General stated, “You have asked us to analyze whether, in light of the state law, the 2019 rulemaking, the facts, and the Constitution, the Oklahoma Department of Education’s recent actions in relation to Altus Christian Academy and Christian Heritage Academy are legally sound. In our opinion, they are not.”

The attorney general memo noted that the LNH law explicitly references only three protected classes in its anti-discrimination provisions.

“No other protected classes are mentioned in the referenced federal statute,” the memo stated. “Both schools in question expressly prohibit discrimination on the three listed grounds. Thus, the schools complied with the Program Statute.”

The memo also stated that the 2000 Executive Order from former President Clinton “did not purport to interpret or expand” the list of protected classes in the federal law referenced by the LNH law.

“Thus, the regulation’s legal justification for expanding the protected categories for the Program is unsound,” the memo stated. “Regulations based on incorrect legal premises cannot supersede the plain requirements of a statute.”

The attorney general memo also said that “it does not appear that the Board of Education has been given the authority to expand the list of protected classes for the Program. In promulgating the regulation, the Board did not pinpoint any particular grant of authority from the Legislature.”

In addition, the attorney general’s office found that the LNH law “expressly prohibits this type of expansion,” noting the state law says, “The inclusion of private schools within options available to public school students in Oklahoma shall not expand the regulatory authority of the state or any school district to impose any additional regulation of private schools beyond those reasonably necessary to enforce the requirements expressly set forth in this section.”

The memo also warned that the State Board of Education, and the OSDE by extension, are “in grave danger of violating the U.S. Constitution’s Free Speech and Free Exercise protections, as well as the Oklahoma Constitution and the Oklahoma Religious Freedom Act” in imposing the new requirements on participating Christian schools.

However, when asked during the meeting for legal authorities’ view of the new “sexual orientation” regulation, Clark did not reference the attorney general memo.

“I don’t know that there’s a recommendation coming out of anywhere,” Clark said.

While Clark recommended that the State Board of Education set aside Christian Heritage Academy’s application once again, he recommended that the board approve the application of Altus Christian Academy, saying the school had provided an affidavit regarding the “sexual orientation” and other discrimination provisions.

The board subsequently approved Altus Christian Academy’s application while shelving Christian Heritage Academy’s request.

Yet Altus Christian Academy’s family/student handbook for 2019-2020 includes a “Statement on Marriage, Gender, and Sexuality” that declares, “Rejection of one’s biological sex is a rejection of the image of God within that person,” and the term “marriage” has “only one meaning: the uniting of one man and one woman in a single, exclusive union, as delineated in Scripture.”

“We believe that any form of sexual immorality (including, but not limited to, adultery, fornication, homosexual behavior, bisexual conduct, transgender lifestyle, bestiality, incest, and use of pornography) is sinful and offensive to God,” the handbook states.

The handbook also states that staff at the school must adhere to those beliefs.

“We believe that in order to preserve the function and integrity of Altus Christian Academy, and to provide a biblical role model to the school’s constituents and the community, it is imperative that all persons employed by ACA in any capacity, or who serve as volunteers, agree to and abide by this Statement on Marriage, Gender, and Sexuality,” the handbook states.

Board member Jennifer Monies said the State Board of Education should be prepared to meet in emergency session to approve Christian Heritage Academy’s application and revise OSDE regulations for the LNH program if the formal opinion issued by the attorney general lines up with the findings of the office’s existing memo.

Board member Estela Hernandez warned that the recently revised LNH regulations may open a “Pandora’s box” leading to lawsuits regarding “the exercise of free speech.” Hernandez said that by telling schools that apply to serve LNH students “that they need to adhere to an administrative rule that the State Department of Education has put forth, we’re also telling them in essence that they need to also adjust their beliefs.”

“I just feel that we’re also trampling on their free exercise of free speech when it comes to their beliefs and their faith,” Hernandez said. “That is going to inevitably move into the conversation of Christian teachings on sexuality, which obviously is part of that discrimination angle that we’re discussing on those six items that Mr. Clark mentioned. We need to be very mindful about the message that we are sending.”

The looming legal problems surrounding OSDE’s handling of the Henry scholarship program come as the agency is also under growing scrutiny for its oversight of state finances.

Earlier this week, nearly two dozen state lawmakers requested that the state auditor perform an investigative audit of the Oklahoma State Department of Education to determine if the agency is failing in its financial oversight of state schools.