IN THE SUPREME COURT OF THE STATE OF OKLAHOMA 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,
VS.

1-titu

SAUPREME COURT ST I'E F. Oki 440mA

JUN 1 4 2012

MIGNALL S.

HICHIE CLERK

Case No. 110694, consolidated with Case No. 110693

RUSSELL SPRY, STEPHANIE SPRY, TIM TYLICKI, KIMBERLY TYLICKI, TIM FISHER, KRISTIN FISHER, STEFAN HIPSKIND, STEPHANIE HIPSKIND, JERRY SNEED, and SHANNA SNEED, Defendants/Appellants. E. SCOTT PRUITT, OKLAHOMA ATTORNEY GENERAL, Appellant. APPLICATION AND STATEMENT OF THE COOPERATIVE COUNCIL FOR OKLAHOMA SCHOOL ADMINISTRATION AND THE OKLAHOMA STATE SCHOOL BOARDS ASSOCIATION FOR PERMISSION TO SUBMIT AMICUS CURIAE BRIEF Pursuant to Supreme Court Rule 1.12, the Applicants, the Cooperative Council for Oklahoma School Administration ("CCOSA") and the Oklahoma State School Boards Association ("OSSBA") (collectively, "the Applicants"), respectfully request permission to submit an amicus curiae brief in support of the Plaintiffs/Appellees. The Appellant/Oklahoma Attorney General consented to the Applicants' request, and the Defendants/Appellants provided equivocal consent. The Plaintiffs/Appellees expressed their intention to deny consent to any amici briefs, regardless of the side of the case the amici supports. However, the Applicants

believe they can offer assistance to the Court in resolving issues raised on appeal that the litigants may not present adequately, but which are relevant to the disposition of this action. 1. CCOSA is a not-for-profit professional association that provides professional

development, advocacy and legal assistance to the members of its six umbrella organizations the Oklahoma Association of School Administrators (OASA), the Oklahoma Association of Secondary School Principals (OASSP), the Oklahoma Association of Elementary School Principals (OAESP), the Oklahoma Middle Level Educators Association (OMLEA), the Oklahoma Directors of Special Services (ODSS) and the Oklahoma Association of Retired School Administrators (OARSA). For the current 2012-13 school year, CCOSA's membership includes more than 2,500 active Oklahoma school administrators from across the state. 2. OASA is a professional association comprised of Oklahoma school

superintendents, assistant superintendents and central office personnel and is affiliated with the American Association of School Administrators, a national organization. 3. OASSP is the professional association for persons practicing or teaching

secondary school administration and/or supervision in Oklahoma and those who have previously served in that role. OASSP is affiliated with the National Association of Secondary School Principals. 4. OAESP, affiliated with the National Association of Elementary School Principals,

is the professional association for persons practicing or teaching Oklahoma elementary school administration and those who previously held such positions. 5. OMLEA is a professional association of Oklahoma principals and educators who

work with students in the middle school and junior high school grades.

6.

ODSS is a professional association of Oklahoma directors of special services,

other school administrators and teachers who have taken on the complex responsibilities of implementing services and programs for children with disabilities in their school districts. 7. The OSSBA is a nonprofit association whose membership consists of over 90% of

the boards of education of local public school districts in the State of Oklahoma that will be directly affected by the decision in this case. Established in 1946, the OSSBA is the only statewide educational organization representing local school boards, and the individual board members represented by the OSSBA are elected or appointed community leaders responsible under state and federal law for the local school district's fiscal management, staffing, educational standards, and general adoption of rules and policies applicable to their respective school district. 8. The school district members of and the school board members represented by the

OSSBA, along with the members of the professional associations under the CCOSA "umbrella," have responsibility for and keen interest in the provision of a free appropriate public education to their students with disabilities. They are involved in the education of students with disabilities in Oklahoma under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. 794, and the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. Further, the Applicants' members have been both directly and indirectly involved in the implementation of the "Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act," Okla. Stat. tit. 70, 13-101.1 and 13-101.2 (2011 Supp.) ("the Act"), and have felt its negative funding impact on Oklahoma public education. The Applicants have a significant educational interest in the issues on appeal. 9. Both the Defendants/Appellants and the Appellant/Oklahoma Attorney General

assert as fact in Issue 2 of Exhibit C to their Petitions in Error, that, "Under the Act, scholarship

amounts are based on the approximate cost of educating the applicant. [citation omitted] The School Districts have no further obligation to educate scholarship recipients." In their brief, the Applicants intend to address the realistic financial impact of the diversion of public funds to private schools under the Act upon Oklahoma school districts' ability to provide a free appropriate public education to those students with disabilities who continue to attend Oklahoma public schools. They also intend to address the school districts' continuing obligation to scholarship recipients under federal law and the Act. 10. Both the Defendants/Appellants and the Appellant/Oklahoma Attorney General

also assert as fact and a question of law in Issue 4(c) (Defendants/Appellants) and Issue 3(c) (Appellant/Oklahoma Attorney General) of Exhibit C to their Petitions in Error, whether "the trial court err[ed] in granting summary judgment for the Districts despite the existence of rational bases for the scholarships provided under the Act[.]" The Applicants intend to address this issue by demonstrating that a rational basis does not exist for treating different classes of students with disabilities students identified for educational purposes as having disabilities under the IDEA and students identified for educational purposes as having disabilities under Section 504/Title II differently under the Act. 11. The Applicants are aware that the Court has ordered the Plaintiffs/Appellees to

submit their brief by June 29, 2012. The Applicants are prepared to submit their amicus curiae brief on the same timeline.

Respectfully submitted, Andrea 1J Kunkel, OBA #11896 Ryan Owens, OBA #22258 2901 N. Lincoln Blvd. Oklahoma City, OK 73105 Phone (918) 828-4006 (Tulsa) Phone (405) 524-1191 (OKC) Facsimile (405) 524-1196 kunkel@ccosa.org owens@ccosa.org Attorneys for Applicant, Cooperative Council for Oklahoma School Administration -AndJulie Miller, OBA #17716 Stephanie Mather, OBA #2059 2801 N. Lincoln Blvd., Ste. 125 Oklahoma City, OK 73105 Phone (405) 528-3571 Facsimile (405) 528-5695 juliem@,ossba.org stephaniem@ossba.org Attorneys for Applicant, Oklahoma State School Boards Association CERTIFICATE OF MAILING I hereby certify that on the 14th day of June, 2012, I caused a true and correct copy of the above and foregoing instrument to be mailed, via certified mail, return receipt requested, with sufficient postage prepaid thereon, to: Andrew W. Lester Matt Hopkins Carrie L. Vaughn LESTER, LOVING & DAVIES, PC 1701 South Kelly Avenue Edmond, Oklahoma 73103

Eric S. Baxter The Becket Fund for Religious Liberty 3000 K Street NW, Suite 220 Washington, D.C. 20007 Patrick R. Wyrick Solicitor General Oklahoma Office of the Attorney General 313 NE 21 st Street Oklahoma City, Oklahoma 73105 J. Douglas Mann Karen L. Long Frederick J. Hegenbart Jerry A. Richardson ROSENSTEIN, FIST & RINGOLD 525 S. Main, Ste. 700 Tulsa, Oklahoma 74103 Tai Chan Du 3324 N. Classen Blvd. Oklahoma City, Oklahoma 73118 Steven K. Balman FELDMAN, FRANDEN, WOODARD & FARRIS 2 West 2nd Street, Suite 900 Tulsa, Oklahoma 74103 William H. Hickman Brad S. Clark HICKMAN LAW GROUP, PLLC 119 N. Robinson, Ste. 300 Oklahoma City, OK 73102

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Julie Miller