Jenks v. Spry (Kimery v. Broken Arrow Public Schools)

Video Credit: Henry Scholarship Program

Stephanie and Russell Spry just want to keep doing what they have always done—give their disabled son the best education they can. It has always been difficult since the public school system is not designed to deal with children who have disabilities like severe autism, meaning that disabled children were simply “warehoused” or worse, bullied mercilessly by other children. The Sprys were overjoyed when the State of Oklahoma set up a scholarship program allowing them to attend schools that are designed to teach the disabled.

But in an outrageous move, Tulsa-area public school districts have sued Garrett Spry and three other disabled children—their own students—and their families to try and keep them from getting the scholarships the State has promised. In an effort to get more public funds, these school districts would rather these children be “warehoused” in the public school system than get an education from teachers who know how to teach the disabled. And they have not shied away from spending thousands of taxpayer dollars to do it.

The State of Oklahoma passed a law in 2010 that gives certain students with disabilities the right to receive a scholarship from the State of Oklahoma to facilitate their attendance in a participating nonpublic school. That law, the Lindsey Nicole Henry Scholarship for Students with Disabilities Program Act, went into effect in August, 2010. While the vast majority of the state’s 541 school districts immediately complied with the law, a handful decided that doing so would violate Oklahoma’s Blaine Amendment–a bigoted provision that targets religious groups–and unilaterally (without court sanction) refused to comply with the law.

Under pressure from the state’s Attorney General, the districts claimed to reverse course and begin complying with the law. But in fact, their “compliance” appears to the affected parents and students as retaliation for seeking a scholarship. The districts allegedly reduced the eligible parents’ awards and significantly complicated their attempts to claim scholarships.

The school districts indicated in January 2011 that they would sue the state Attorney General regarding the constitutionality of the scholarship program. After waiting in limbo for nearly four months, in April 2011 twelve of the special needs students and their parents, represented by the Becket Fund, sued the districts.

Then the State Legislature stepped in and solved the problem in the summer of 2011 by removing responsibility for the Scholarship Program from the school districts. That led to the parents dismissing their lawsuit; problem solved.

But the school districts couldn’t take no for an answer from the State Legislature. So in a cowardly move, instead of suing the state, last fall they sued disabled children and their parents in state court in an effort to deny them the scholarships. The Becket Fund is defending these disabled children and their families in Oklahoma state court. The Oklahoma Solicitor General will also argue in favor of the scholarship program.

On March 27, 2012, an Oklahoma District Judge ruled against the families stating that the program was unconstitutional. The Becket Fund appealed the decision, and on April 18, 2012, the Judge ruled that the program can remain intact while the appeal is pending.

On June 18th, the Becket Fund filed their brief before the Oklahoma Supreme Court noting Blaine Amendments could not be used to prevent religious students or schools from participating in State programs that are available to everyone else.  And further noted that the “U.S. Supreme Court has made clear that these amendments have ‘a shameful pedigree,’ which the High Court does ‘not hesitate to disavow.’”

Victoriously, on November 20, 2012, the Oklahoma Supreme Court ruled in favor of the Lindsey Nicole Henry Scholarship Program, allowing hundreds of children with disabilities to continue attending schools suited for their special needs.

“This is a great victory for both religious freedom and the disabled,” said Eric Baxter, Senior Counsel for the Becket Fund for Religious Liberty, which represents the parents of disabled students who were sued by their public school districts.  “The message from the Supreme Court today is unequivocal: These school districts should stop spending taxpayer dollars suing their most vulnerable students and focus on what they are supposed to be doing—teaching kids. Let’s hope the school districts drop their paranoia that allowing disabled kids to go to a private religious school of their choice somehow creates an official state church for Oklahoma.”

The Court’s decision didn’t reach the merits of the case; rather, it ruled that the school districts did not have the right to bring the lawsuit challenging the Legislature’s decision to fund the scholarships.

“The best thing about the scholarships is that they allow our clients to get the education that the public schools just don’t have the ability to provide,” said Baxter. “The Supreme Court’s ruling means that the school districts don’t ‘own’ their students, and the Legislature can act to help those in need.”


For more information, or to arrange an interview with one of the attorneys, please contact Melinda Skea, Communications Director, at or call 202.349.7224.



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Press Releases:

  • Press Release,  Oklahoma Supreme Court Rules in Favor of Disabled Students (November 20, 2012)
  • Press ReleaseScholarship Program for Disabled Children Gets Second Chance (April 18, 2012)
  • Press ReleaseOklahoma District Judge Rules Against Disabled Students’ Opportunity For Equal Education (March 27, 2012)

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Top Stories:

  • Press Release,  Oklahoma Supreme Court Rules in Favor of Disabled Students (November 20, 2012)
  • Press ReleaseBattle for Disabled Children’s Scholarships Begins before OK Supreme Court (June 18, 2012)
  • Press ReleaseScholarship Program for Disabled Children Gets Second Chance (April 18, 2012)
  • Press ReleaseOklahoma District Judge Rules Against Disabled Students’ Opportunity For Equal Education (March 27, 2012)

Top Legal Documents:

Henry Scholarships for Special-Needs Kids in Oklahoma

Eric Baxter on Oklahoma’s News on 6