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IN THE SUPRME COURT OF THE STATE OF K1*Independent School District No.

5 of Tulsa County, Oklahoma, a/k/a Jenks Public Schools; and Independent School District No. 9 of Tulsa County, Oklahoma, a/k/a Union Public Schools; Plaintiffs/Appellees, v. Russell Spry, Stephanie Spry, Tim Tylicki, Kimberly Tylicki, Tim Fisher, Kristin Fisher, Stephan Hipskind, Stephanie Hipskind, Jerry Sneed, and Sharma Sneed, Defendants/Appellants.

H PREME STATE OF CO
JUN .1 2 2012

0 4k ED

01(LAHOMR

URT

MICHAEL CLER RICHIE

No. 110694

APPLICATION OF THE ARCHDIOCESE OF OKLAHOMA CITY AND GOOD SHEPHERD CATHOLIC SCHOOL FOR PERMISSION TO SUBMIT AMICUS CURIAE BRIEF Pursuant to Supreme Court Rule 1.12, Applicants, the Archdiocese of Oklahoma City and the Good Shepherd Catholic School, respectfully request permission to submit an amicus curiae brief in support of the Defendants/Appellees. The Applicants believe they will be able to offer assistance to the Court in resolving the issues raised by the appeal in this declaratory judgment in which, contrary to law and public policy, the Lindsey Nicole Henry Scholarship for Students with Disabilities Program Act, 70 O.S. 2011, 13-101.1, 13-101.2 (the "Act"), was declared unconstitutional. 1. The Applicants operate private schools with special facilities for students with disabilities. The Act provides state-funded scholarships to students with disabilities, and enables those students to attend private schools with special facilities for students with disabilities. As a

consequence, the Applicants are affected by the trial court's decision declaring the Act to be unconstitutional. 2. The Good Shepherd Catholic School at Mercy (the "School") is a collaborative

partnership between the Archdiocese of Oklahoma City (the "Archdiocese"), Mercy Health Systems and the University of Central Oklahoma. The School is located in close proximity to Mercy Hospital in Oklahoma City. The School provides educational and behavioral services for 3 to 9 year old children who have been diagnosed with autistic spectrum and similar neurological disorders. 3. Upon acceptance into the School, each child is assessed in order to develop

his/her educational and behavioral treatment plan, as well as an IEP. An IEP is an Individualized Education Program and is required by federal lawthe Individuals with Disabilities Education Act ("IDEA"). IDEA is the successor of the Education for All Handicapped Children Act. idea.ed.gov . 4. The School provides services not normally available in public schools. At the

See

School, the students receive the attention of a team of professionals that includes a special education teacher, a treatment coordinator, a Board Certified Behavioral Analyst, a university professor and behavioral interventionists. The team makes data-based decisions that guide the specific, individualized educational and behavioral intervention for each child. 5.

See gscok.com .

The Archdiocese and the School would like to file an amicus brief addressing

issues presented by federal law: (a) (b) Do the plaintiffs in the case below have standing under the United States Constitution? Does the trial court's ruling violate the First Amendment?

(c)

Does the Oklahoma Constitution, as interpreted by the trial court, violate the Supremacy Clause?

Applicants have conferred with counsel for Appellants and understand that Appellants will address both state and federal issues, with an emphasis on state issues. The amicus brief will not duplicate the Appellant's brief-in-chief. 6. The issues identified by the Applicants are identified as issues in the Petition in

Error, filed May 15, 2012 (the "Petition").

(a)

Standing. The standing issue is addressed in Issue No. 2 and, to some extent, Issue No. 3. See Petition at 9. First Amendment. The First Amendment issue is
addressed in Issue No. 5 and Issue No. 6, especially Issue No. 6. See Petition at 10.

(b)

(c)
7.

Supremacy Clause. The Supremacy Clause issue is raised in Issue No. 6. See Petition at 10.

Standing. The plaintiffs in the case below are public school districts

subdivisions of the State of Oklahoma. See 70 O.S. 2011, 5-105; 68 AM. JUR. 2D Schools 15-16 (2000). It is not clear how school districts have standing to challenge the constitutionality of a state law. It is not clear how the school districts have been injured by the Act. See, e.g.,

McConnell v. Federal Election Comm'n, 540 U.S. 93, 225 (2003) (injury must be both concrete
and "actual or imminent"), discussed in ERWIN CHEMERINSKY, FEDERAL JURISDICTION 2.3.2 at 62 n.21 (5th ed. 2007). If anything, the Act helps school districts perform their duties and fulfill their obligations to disabled childrenduties imposed by federal law (e.g., IDEA). 8. First Amendment. The First Amendment, through the Free Exercise and Establishment Clauses, regulates the relationship between Church and State. Two separate but related points must be made. First, the Act authorizes a "voucher" program. Payments are made to parents, not directly to private schools. See MILTON FRIEDMAN, THERE'S No SUCH THING AS A
3

FREE LUNCH: ESSAYS ON PUBLIC POLICY

275 (1975) (hereinafter, "Friedman"). Second, parents

choose the school their disabled child will attend. Programs that enable students to attend either nonreligious or religious schools are deemed to be neutral with respect to religion and do not offend the First Amendment. E.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002). Examples of programs of private choice that do not offend the First Amendments include the "G.1. Bill" andApplicants respectfully submitthe Act. Friedman at 275. 9. Supremacy Clause. The Supremacy Clause establishes the United States

Constitution and laws of the United States "made in Pursuance thereof" as "the supreme Law of the Land." U.S. CONST. ART. VI , 2; Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). The trial court's decision suggests that any provision of services by religious institutions to the State violates the Oklahoma Constitution. If that interpretation of the Oklahoma Constitution is the law, then the Oklahoma Constitution itself violates federal law, including the "Free Exercise and/or Equal Protection Clauses of the United States Constitution." Petition at 10 (Issue No. 6). The United States Constitution determines the relationship between Church and State, not the state constitution. 10. By order of the Court, the Appellant's brief-in-chief is due on Friday, June 15,

2012. The Applicants can file their amicus brief the same day, if the Court grants leave. 11. Counsel for the Applicants sent an email to counsel for Appellees (Douglas

Mann) on Monday, June 11, 2012, asking whether Appellees would consent to the filing of an amicus brief by the Applicants. Counsel has not received a response to that inquiry. 12. The Court's rules call for ten (10) days notice of an application to file an amicus

brief to be given. The Applicants are not able to comply with that time period. They learned of

the decision to allow appellate briefing recently, and retained counsel for the purpose of submitting this application, and any brief that may be permitted, on Monday, June 1 1, 2012. Respectfully submitted,
RANK FELDMAN,'

-;"

OODARD & FARRIS

Leven K. Balman, OBA #492 2 West 2 nd Street, Suite 900 Tulsa, Oklahoma 74103 Tel: 918/583-7129 Fax: 918/584-3814 sbalmangtulsalawyer.corn Attorneys For Applicants, The A rchidiocese Of Oklahoma City And Good Shepherd Catholic School

CERTIFICATE OF SERVICE The undersigned hereby certifies that on this gAday of June 2012, he caused a true and correct copy of the foregoing document to be sent via hand delivery to the following: J. Douglas Mann Karen L. Long Frederick J. Hegenbart Jerry A. Richardson Rosenstein, First & Ringold 525 S. Main, Suite 700 Tulsa, OK 74103 And via U.S. Mail, postage prepaid, to the following Patrick R. Wyrick Solicitor General Oklahoma Office of the Attorney General 313 NE 21st St. Oklahoma City, OK 73105 Cai Chan Du 3324 N. Classen Blvd Oklahoma City, OK 73118 Andrew W. Lester Matt Hopkins Carrie L. Williams Lester Loving & Davies, P.C. 1701 South Kelly Ave. Edmond OK 73013 Jerry Richardson 525 S. Main, Suite 700 Tulsa OK 74103 Eric S. Baxter 3000 K STREET NW SUITE 220 WASHINGTON, DC 20007

David Matthew Hopkins 1701 South Kelley Avenue Edmond, OK 73013 Eric C. Rassbach Eric N. Kniffin The Becket Fund for Religious Liberty 3000 K St. NW, Suite 220 Washington, DC 20007

Bobby L. Latham, Jr. Lance Freije Latham, Wagner, Steele & Lehman, P.C. 10441 S. Regal Blvd., Suite 200 Tulsa, OK 74133

STEVEN K. BALMAN 6

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