Ep. 132: Choice in the States – Oklahoma with Brandon Dutcher

August 29, 2019

In this episode of our Choice in the States series, Director of Policy Jason Bedrick talks with Brandon Dutcher, senior vice president of the Oklahoma Council of Public Affairs. They discuss the beginnings of the Lindsey Nicole Henry Scholarships for Students with Disabilities, and how the state’s tax-credit scholarship program has nearly doubled the number of participating students in the past year.

Jason Bedrick: Hello, and welcome back to another edition of EdChoice Chats. This is the state policy series. I am Jason Bedrick, your host. I’m the director of policy here at EdChoice, and joining me today is Brandon Dutcher. He is the senior vice president of the Oklahoma Council of Public Affairs. Brandon, welcome to the podcast.

Brandon Dutcher: Good to be with you.

Jason Bedrick: So, Oklahoma has two school choice programs. The first of those was enacted and launched in 2010. That’s the Lindsey Nicole Henry Scholarships for Students with Disabilities. Could you tell us a little bit about what this program does and who’s eligible for it?

Brandon Dutcher: Yeah. So, this is our private school voucher program. It is for special needs kids, so kids on an IEP or an ISP. Then, in 2017 we expanded it to include foster children or children that are adopted out of state custody, so the eligibility has grown. The voucher is worth the amount of state and local money spent on the child in a public school, or whatever the tuition and fees would be at the private school, whichever is less.

That turns out, on average, to be around $6,600 in Oklahoma. There are about 827 students participating, which is great for them. It’s not very many compared to the nearly 700,000 students in the state, but that’s who’s participating so far.

Jason Bedrick: It’s rather impressive growth, considering that the program started with six students. But as you mentioned, 800, I mean, we’re talking a fraction of one percent of the total student population of Oklahoma, so still a very, very small program. But it does provide a decent size scholarship, and I’m sure that it makes a huge difference to those students who are participating.
And yet, this was a very controversial law, at least legally speaking. Could you give us a little bit of the background of the lawsuits that this has faced?

Brandon Dutcher: Yes it was. It was kind of shocking, what ensued after it was passed, 2010, and then some school districts in the Tulsa area, especially, really were recalcitrant to the point of … First they said, “Well, we’re not going to participate,” then the Attorney General said, “No, you really do need to participate.”

Jason Bedrick: And when you say participate, what do you mean?

Brandon Dutcher: “Well, we’re just not going to honor it. We don’t think it’s constitutional, and therefore, we’re not going along with it”

Jason Bedrick: Right, because the school district is necessary to sign off on some of the paperwork to let these students go get a voucher and go to a private school.

Brandon Dutcher: Right. And so, they were dragging their heels. Even the Jenks Public Schools actually sued parents in 2012 and said, “You can’t do this.”

It was really, you talk about bad public relations, that could be a textbook case of it. But I remember the bill’s author, Jason Nelson, said, “It’s like suing Grandma for participating in Medicare.”
I mean, it doesn’t make any sense, but they did it. That was dismissed on procedural grounds. The court said, “You don’t have standing.”

Jason Bedrick: You can’t sue the parents, right?

Brandon Dutcher: You can’t sue parents, that’s the wrong defendant.

Jason Bedrick: So, you sue the government for having a program you don’t like, not the beneficiaries of that program.

Brandon Dutcher: Right.

Jason Bedrick: It’s amazing that they thought they could get away with that, but I guess they figured that the state would have the lawyers to defend it and these parents wouldn’t, or what was the logic there, if you know?

Brandon Dutcher: Well, I wish I could get in their heads and know. I really don’t. They just … I think they were shocked that it passed, and they were so confident that they had the state constitution on their side, that they were just bold in this way, but it was thrown out of the fed … So, they regrouped and found some plaintiffs to sue the state, and then they actually prevailed in Oklahoma County district court in 2014. It looked like the program could be on the ropes, but it went to the Oklahoma Supreme Court, and in 2016 we won unanimously, nine to zero. The court said, “This program is constitutional.”

Jason Bedrick: And that, of course, cleared the way, potentially, for other school choice programs.

Brandon Dutcher: Yeah. It sure looks that way, because of the way it was written. I mean, it was… You read the decision and you’re like, “Wow, this is … Did Clint Bolick write this, or what? This is unbelievable.”

They cited Zelman v. Simmons-Harris and they said all the things that we would have wanted them to say. I mean, look, this doesn’t violate the Blaine Amendment because parents can voluntarily participate, they can choose what school. The money goes to the parent, it doesn’t go to the state, and so on.

You read it and you think, “Wow, not only is this constitutional, but it sure looks like clear sailing for further expansions of any sort of voucher program in Oklahoma.”

Jason Bedrick: And so you did have one new voucher … Or actually in this case, a tax-credit scholarship program that was enacted in 2013 … Or at least enacted in 2011 but launched in 2013. Could you tell us a little bit about the Oklahoma Equal Opportunity Education Scholarships?

Brandon Dutcher: Yeah. That’s our tax-credit scholarship program, which you know, what, 17 other states or something have. It is really pretty generous in terms of eligibility. A student just has to be in a household with an income of up to 300 percent of free and reduced lunch. In Oklahoma, that’s $139,000 for a family of four, so north of 80 percent of the families in the state are eligible. The average scholarship has turned out to be around $2,100, but the program has really taken off. I’m actually vice president of one of the scholarship-granting organizations, the largest one in the state. So, I’m intimately involved with that as well, not just in the think tank capacity here.

It’s really exciting. Just like the Lindsey Nicole program has produced so many wonderful stories, this has as well. We’re thrilled with it and we hope to expand it.

Jason Bedrick: In this case, the contributors … And is it just individuals, or businesses that are making the contributions?

Brandon Dutcher: Businesses, it can be businesses, and it can be individuals as well.

Jason Bedrick: And both would receive 50 percent tax credit, correct?

Brandon Dutcher: Fifty percent, or if you commit to two years, it’s 75 percent, which a lot of people do.

Jason Bedrick: Right, I imagine they would. Fifty would be the lowest credit value in the country, tied for lowest of all the 18 states that have tax-credit scholarship programs. Although 75 percent would put it toward the mid-range, but still on the lower end of the scholarship size. How many students is the program currently serving?

Brandon Dutcher: There are approximately 3,000 students benefiting from the program, which is up substantially from just 38 when we started. It’s growing every year. We’ve actually hit the cap on tax credits the last two years. There’s a bit of urgency now to raise the cap, so we can help more and more kids.

Jason Bedrick: Right. It’s been fairly impressive growth, and actually just in the last year, it’s almost doubled in the number of students who are participating, so clearly, there is demand for this program. What do you think though is going to be next for Oklahoma?

Brandon Dutcher: I think it’s always easier to expand what you have rather than create something new. So, I think the most likely candidates will be to expand eligibility for the Lindsey Nicole Henry scholarship and to raise the cap on the tax-credit scholarship program. Our session just started on February 4, and there are actually a couple bills in the legislature right now that would expand eligibility for the Henry scholarship. One of them would expand eligibility to homeless students. There’s actually a private school for homeless students in Oklahoma City called Positive Tomorrows. It’s really unique, maybe the only school of its kind in the country. It participates in the tax-credit scholarship program, but now there’s a bill to make homeless kids eligible for the voucher as well.

And another bill would expand eligibility for the children of incarcerated parents. There’s actually a school not far from our office here that caters specifically to kids who’s mom or dad is in jail. They don’t do well in public school, they get made fun of and so forth. But this school really has a heart for these kids, and so there’s a bill that would expand to that population.
There is also a bill that’s not part of Lindsey Nicole Henry, but it would create a new scholarship program modeled after Lindsey Nicole Henry. Just basically a private school scholarship for students who are bullied in public schools, which as you know is a huge problem nationwide.

Jason Bedrick: Right, and similar to the Hope scholarships that were enacted last year in Florida, and are actually serving hundreds of students who experienced bullying or harassment in their school district and school was not able to address the issue. This becomes not only an escape hatch for those students who are going to school and being tormented every day, but also creates a very strong financial incentive for the schools to take the issue of bullying seriously, because they know that if they don’t, then these families have other options for their children.

Brandon Dutcher: Yes indeed. That is exactly the thinking.

Jason Bedrick: Now, can you tell us a little bit actually of the history of the Lindsey Nicole Henry scholarship? How did it get its name?

Brandon Dutcher: It’s fascinating. It was actually signed into law by a Democrat governor, Brad Henry. When it got to his desk, it was unclear whether he would sign it. I mean, typically Democrats don’t sign voucher bills. But he read it and thought it was a perfectly good idea. He even allowed it to be named for his daughter, a little girl named Lindsey Nicole Henry who had been born with a rare disease and sadly at just seven months old, she had died in her parents’ arms. Obviously, she holds a special place in their heart, and lo and behold, two decades or so after her death, we have the Lindsey Nicole Henry scholarship program. The governor or his staff, no one asked for it to be named for her, but it was suggested to him as a way to honor her memory and let it be known that she and her parents are helping to improve the lives of special needs kids, which is exactly what’s happening.

I mean, as we said, there’s only 827 students right now, but that is 827 lives changed and wonderful stories.

Jason Bedrick: And so only fitting that we would then expand the program to help other vulnerable populations like the homeless or the children of the incarcerated.

Brandon Dutcher: It makes sense to me, yeah.

Jason Bedrick: What do you think the prospects are of legislation to expand the Henry scholarships, or for that matter, the increased funding or tax-credit cap so that there could be more funding for the tax-credit scholarship program?

Brandon Dutcher: Crystal balls are always dicey. The expanding it to the homeless seems like a no-brainer. I mean, the good news, it’s being run by the Senate, president pro tempore. That’s always a good sign. We actually went in the field with a public opinion poll just to test some of these questions. That one polled off the charts, 82 to 14—82 percent support expanding it to homeless students, 14 percent of people for some reason do not. But that’s pretty strong. The incarcerated one as well was very strong—76 percent to 20 percent. And the bullied one, we polled that and it was strong too. Sixty-four percent support creating a program like that, private scholarships for bullied kids. Only 29 percent opposed.

You know, it’s hard to know, but in 2010, I didn’t think there was a chance, especially with a Democratic governor, and it happened. So we just do the best we can.

Jason Bedrick: Well, we’re very much looking forward to seeing what happens this year. We are very hopeful, and look forward to seeing an expansion of school choice in Oklahoma. Thank you for all of your efforts to make that happen.

Brandon Dutcher: Oh, thank you. I forgot to mention that, in 2010 there was a person named Leslie Hiner from this organization called the Friedman Foundation, who actually came to Oklahoma and helped us get the Lindsey Nicole Henry bill passed. So, we’re grateful to you and we will keep doing our best here.

Jason Bedrick: Our pleasure. We’ll do the best we can on our end. Thank you so much, Brandon, for joining the podcast. My guest today has been Brandon Dutcher of the Oklahoma Council of Public Affairs.

You can subscribe to this podcast on SoundCloud, iTunes and Stitcher. Follow us on social media, @edchoice, and sign up for email on our website, edchoice.org. You’ve been listening to EdChoice Chats. We’ll see you next time.