[Guest post by Jonathan Small]
State House Democrats have asked Attorney General Mike Hunter for an opinion on whether it is legal to use federal funds to help low-income (and often minority) students attend private schools. Yet that question has been asked and answered—in the affirmative—repeatedly.
Earlier this year Congress approved the Coronavirus Aid, Relief, and Economic Security (CARES) Act, providing hundreds of millions to state governments for COVID-19 response. Oklahoma education entities were among the recipients with public schools getting $160 million, state colleges—both public and private—getting another $159 million, and nearly $40 million placed in the Governor’s Emergency Education Relief (GEER) Fund.
Stitt designated $10 million in GEER funding for his “Stay in School” program. That program is expected to provide more than 1,500 Oklahoma families with up to $6,500 apiece for private-school tuition. That’s a bargain compared to roughly $9,200 apiece that would otherwise be spent educating those kids in public schools.
The beneficiaries of the “Stay in School” program will include homeless children, teens recovering from addiction through a “sober school,” and low-income minority children from the state’s urban core. Apparently, some House Democrats see that as a bad thing and are trying their best to now deprive those children of educational opportunity.
But Democrats are doing so based on a legal foundation that makes quicksand look like bedrock.
The section of the CARES Act governing GEER Funds states that governors are authorized to support not only local public schools but also any other “education-related entity” the governor “deems essential for carrying out emergency educational services to students.”
The U.S. Supreme Court has upheld government programs that allow children to attend private schools, declaring, “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 one such recent U.S. Supreme Court case. Hunter said prohibitions on uses of state funds for religious purposes do not prohibit aid to students who then attend private religious schools.
Notably, the U.S. Supreme Court referenced Hunter’s brief in its ruling, and the National Association of Attorneys General (NAAG) awarded its 2020 U.S. Supreme Court Best Brief Award to Hunter’s Solicitor General Unit for that brief.
Also, the Oklahoma Supreme Court has found that taxpayer funds can support students who attend private schools—and their ruling was unanimous.
Put simply, there is no question about the legality of the “Stay in School” program.
Even as the debate over “Stay in School” funding continues, federal CARES Act funds have gone to private colleges such as the University of Tulsa and Oklahoma City University. But Democrats have voiced no objection to supporting those private colleges with federal funds, only to using federal cash to aid some of the neediest children in Oklahoma.
Make of that what you will.