One of the bright spots in Oklahoma’s education system is the Lindsey Nicole Henry (LNH) Scholarship program, which provides private-school vouchers to children with disabilities, children in the foster care system, and children adopted out of state custody. Named after former-Governor Brad Henry’s daughter, the program has more than 1,000 students and 62 schools participating.
In September of this year, the Oklahoma State Board of Education denied the applications of two Christian schools upon objection by member Kurt Bollenbach. Bollenbach’s objection was based on the schools’ policy of hiring teachers that adhere to traditional Christian teachings on issues of sexuality.
Bollenbach said schools “have every right” to set their hiring policies “until they ask for state dollars or federal dollars.” Bollenbach, a licensed attorney in Oklahoma, is on shaky legal ground with that statement if one considers decisions of the Oklahoma and United States Supreme Courts.
The Oklahoma law establishing the LNH program requires participating schools to comply “with the antidiscrimination provisions of 42 U.S.C., Section 2000d,” which prohibits discrimination based on “race, color, or national origin” for participants in federal programs. Notably absent are religion and sexual orientation. The policies of the schools provide they do not discriminate on the basis of race, color, national origin, or disability. So why did the State Board of Education deny the applications?
The Board seems to rely on an executive order of President Clintion (EO 13160) which they claim expanded the list of protected classes covered by Section 2000d. The EO did reference Section 2000d and it did prohibit discrimination against certain classes of people—including religion and sexual orientation. But it did not—and could not—expand the list of protected classes covered by Section 2000d.
Even if President Clinton wanted to amend Section 2000d by EO 13160, he would have been legally unable to do so as there is no legal basis for a president to rewrite laws. The Sixth Circuit, in Susan B. Anthony List v. Driehaus, recognized executive orders do not amend statutes. Still, that did not keep the Oklahoma State Department of Education from amending the administrative code governing the LNH program to read EO 13160 into the rules governing the program. The new rule added half a dozen protected classes including religion and sexual orientation.
But just as the president cannot amend a statute via executive order, a government agency cannot amend a statute via administrative rulemaking. According to the Oklahoma Supreme Court, agency rulemaking is designed to “ facilitate the administration of legislative policy”—not make policy. The agency’s job, in other words, is to publish rules to assist in the processes and procedures for administering the law enacted by the legislature. The Oklahoma Supreme Court recognizes while the legislature is allowed to delegate authority to make rules to implement the legislature’s policy, the legislature cannot delegate its policymaking authority.
The legislature clearly and unambiguously incorporated Section 2000d in 2010. If it wanted to incorporate EO 13160, it could have done so, but it didn’t. The Oklahoma Supreme Court has been clear on this. In Adams v. Prof’l Practices Comm’n, the Court held “[a]n administrative agency may not under the guise of its rule making power exceed the scope of its authority and act contrary to the statute which is the source of its authority. Its authority to make rules for its various procedures does not include authority to make rules which extend their powers beyond those granted by statutes.” Because the law enacted by the legislature does not prevent discriminiation on the basis of sexual orientation or religion, the Department of Education’s amendment was void. Because the schools comply with the antidiscrimination rules set forth in Section 2000d, Bollenbach and the Board have no legal basis to keep the two religious schools from participating in the LNH program.
Finally, Bollenbach’s reasoning for denying the schools because they only hire “mature Christian teachers” and their adherence to traditional Christian teachings on sexuality likely violate the schools’ free speech and free exercise rights. The United States Supreme Court has consistently recognized religious institutions are free to choose their own ministers and teachers free of government interference.
This summer, the U.S. Supreme Court, in Espinoza v. Montana Department of Revenue, held states cannot discriminate against religious institutions administering a school choice program similar to the LNH program. It has also noted “[u]nder the well-settled doctrine of ‘unconstitutional conditions,’ the government may not require a person to give up a constitutional right.” Because the State Board has required the schools to forego their free exercise rights under the First Amendment in order to participate in the LNH program, it is inviting lawsuits. If it wants to avoid costly litigation it is certain to lose, the Board should reverse course immediately and allow all schools meeting the Section 2000d criteria to participate.