House Democrats claim Governor Kevin Stitt cannot use federal COVID funds to help low-income and minority students stay in private schools. The text of the federal law that provided the funding, rulings from both the U.S. Supreme Court and Oklahoma Supreme Court, and Attorney General Mike Hunter’s own award-winning brief in a prior court case all say House Democrats are wrong.
Over and over, the legality of allowing parents to use taxpayer funds to pay for private school has been upheld so long as the program is viewpoint neutral. The governor’s plan meets all criteria. It is very disturbing that House Democrats would try to take money out of the pockets of needy children to deprive them of a quality education, especially at a time when many public schools are refusing to provide even the most basic in-person instruction.
Background: The federal Coronavirus Aid, Relief, and Economic Security (CARES) Act provided funding to states for COVID-19 response. A subset of Oklahoma’s share was the $39.9 million that Congress directed to the Governor’s Emergency Education Relief (GEER) Fund. Gov. Kevin Stitt has allotted $10 million in GEER funding for the “Stay in School” program, which will provide temporary funding to low-income students attending private schools. It is anticipated that more than 1,500 Oklahoma families will be able to access $6,500 apiece for tuition through the program.
House Democrats have questioned the legality of the program and requested a formal opinion from Attorney General Mike Hunter.
The section of the CARES Act that governs the use of GEER Funds states that governors are authorized to support not only local educational agencies (the legal phrase used for public school districts) but also any other “education related entity” the governor “deems essential for carrying out emergency educational services to students.” The phrase “education related entity” includes private schools.
The U.S. Supreme Court recently upheld the legality of state programs that allow children to attend private schools in Espinoza v. Montana Department of Revenue. In that case, the court declared, “We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.”
Attorney General Mike Hunter filed a brief in the Espinoza v. Montana Department of Revenue case declaring, “Prohibitions on uses of state funds do not prohibit individuals’ use of tax credits, nor do prohibitions on aiding religious schools prohibit aid to religious students.” The U.S. Supreme Court referenced Hunter’s brief in its ruling, and the National Association of Attorneys General (NAAG) recently awarded its 2020 U.S. Supreme Court Best Brief Award to Hunter’s Solicitor General Unit for that brief.
The Oklahoma Supreme Court has also found such programs are allowed by the Oklahoma Constitution, writing, “When the parents and not the government are the ones determining which private school offers the best learning environment for their child, the circuit between government and religion is broken.” (Emphasis in original.)