Education, Judicial Reform

Lawmakers bar anti-religion discrimination in state program

February 23, 2021

Ray Carter

Lawmakers have voted to prevent state discrimination against private Christian schools that adhere to orthodox Christian teachings as part of their mission.

The legislation comes after private Christian schools were previously barred from serving the beneficiaries of a state scholarship program because of the schools’ religious teachings.

The Lindsey Nicole Henry Scholarships for Students with Disabilities program (LNH) provides state scholarships to students with special needs and 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 in the referenced federal law.

However, the Oklahoma State Department of Education developed regulations in 2019, eventually approved by the Oklahoma State Board of Education, that expanded antidiscrimination provisions to include sexual orientation and religious affiliation, among other things. Those regulations effectively barred the participation of schools that adhere to historic Christian teachings, such as those that require teaching staff to be professing Christians. Those additions, made nine years after the LNH program was created, were advanced at the OSDE before Gov. Kevin Stitt’s appointments to the State Board of Education began their service.

Senate Bill 126, by Sen. Julie Daniels, would change state law to explicitly prohibit “discrimination on the basis of race, color and national origin” by private schools that participate in the LNH program, making clear that no other categories are included in the program’s anti-discrimination provisions.

“We had an issue where there may have been some confusion on the part of the state school board a year ago where they tried to expand that definition of the schools that could be prohibited from receiving a student with a Lindsey Nicole Henry Scholarship,” said Daniels, R-Bartlesville. “All I’ve done is to make sure that there’s no problem.”

The legislation comes after Attorney General Mike Hunter concluded the Oklahoma State Department of Education and Oklahoma State Board of Education illegally advanced the regulations barring many private Christian schools from participating in the LNH program.

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.”

Hunter’s opinion also stated that “as a straightforward textual matter, private schools that seek to participate in the Henry Program must not discriminate on the basis of ‘race, color, or national origin.’ Nothing else is required … with respect to nondiscrimination.”

Due to the “sexual orientation” and “religion” anti-discrimination regulations, the State Board of Education initially declined to approve the application of Christian Heritage Academy to serve LNH recipients. The school’s application was approved after Hunter’s opinion was issued.

One Democratic lawmaker objected that SB 126 would allow Christian schools to “discriminate” based on issues like sexual orientation or religious belief.

“So I understand then that schools that accept the Lindsey Nicole Henry Scholarship would be able to discriminate in other categories, potentially, if we make this change,” said Sen. J.J. Dossett, D-Owasso. “Is that correct?”

Daniels responded that the bill limits the antidiscrimination provisions to the three categories that have been in place since the program’s creation but does not expand them.

SB 126 passed the Senate Education Committee on a 9-3 vote. All Republican members voted in favor of the legislation, while all Democratic members of the committee opposed the bill’s passage.