Scholarship Fund Tells Private Schools to Revise Discrimination Policies

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At least 60 private schools receiving tax-credit scholarships have been given three months to comply with a state law that prohibits discriminating against applicants based on disability.

The Opportunity Scholarship Fund, a nonprofit that last year collected $5.1 million in donations to help pay students’ tuition at private schools across the state, says schools that don’t comply will be removed from the program.

An Oklahoma Watch article on Jan. 17 spurred an investigation into the program by the Oklahoma Disability Law Center, a legal advocacy group for people with disabilities. The center will be monitoring the fund’s compliance checks.

To participate in the tax credit scholarship program, state law requires schools to have a stated policy against discrimination in admissions on the basis of race, color, national origin or disability. A check of more than 80 participating schools found just seven with policies that included disability, and some schools explicitly reserved the right to reject students whose disabilities they say they are unable to accommodate.

No students have come forward with complaints of discrimination. But Joy Turner, a managing attorney for the Oklahoma Disability Law Center, said the policies and accompanying statements could act as a deterrent for parents of students with disabilities.

“The problem with the statement is that’s going to totally dissuade families with children with disabilities from even applying to those schools,” Turner said. “That definitely needs to change.”

Rob Sellers, director of the Opportunity Scholarship Fund, agreed that some schools held policies that were not appropriate or compliant with the law.

He says the fund is working with schools to review and amend the policies.

“We have asked each school to review its policies and fully comply with the law within the next 90 days,” Sellers said in a written comment. “Any schools that don’t conform to the legislation we operate under will be required to cease participation in the Opportunity Scholarship Fund.”

The fund is the largest of 10 Oklahoma “scholarship granting organizations” that administer the tax credit scholarship funds to schools. It’s unknown if other funds will issue similar orders to their participating schools.

One legal issue is whether private schools have to add services to accommodate disabled students.

The fund’s board of directors, through an FAQ section on its website, has been advising schools that they don’t. Sellers said the board is now reviewing that language and will likely take it up at the next board meeting.

Turner also said her legal opinion is private schools don’t have to add special education services. “If they’re not a public school and they don’t get federal money, there’s no law that requires them to provide extra services,” she said.

However, other attorneys say the federal Americans with Disabilities Act could apply to certain schools, such as non-religious private schools and schools that receive federal money such as for meal subsidies. The ADA requires “reasonable accommodations,” including modifications in policies and practices unless it would fundamentally alter the school’s program.

It’s an issue that state courts have not weighed in on, since there have been no lawsuits on the program.

The scholarship program, a school-choice measure, gives taxpayers a state income tax credit for donations to nonprofits like the Opportunity Scholarship Fund. Those organizations then direct the money to schools, which use it to offset the cost of tuition for some students. More than 80 schools participate, and most are religious.

Turner said the scholarship fund could be liable for continuing to contract with schools with discriminatory policies.