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.

STATE

SUPREME COURT OP 4I -10MA JUN 14 2 012 CLERK

6. HICHIE

MiC hAtc.

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.

Case No. 110694, consolidated with Case No. 110693

APPLICATION FOR LEAVE TO FILE BRIEF ON BEHALF OF AMICUS CURIAE ROBERT H. HENRY Pursuant to Okla. Sup. Ct. R. 1.12(a) and 1.12(b), Robert H. Henry respectfully submits this application for leave to file a brief as amicus curiae. Robert H. Henry ("President Henry") is President and Chief Executive Officer of Oklahoma City University ("University"). President Henry submits that the nature and extent of his interest in the proper resolution of this case are sufficient to justify the granting of his application to a file a brief in this Court. Furthermore, President Henry submits that the brief he seeks to file will illuminate facts and law highly relevant to the proper disposition of this case that may not be adequately addressed by the parties. President Henry, as well, states that, while he understands that the Court will not accept his brief 1

unless this application is approved, he intends, pursuant to Okla. Sup. Ct. R. 1.12(d), to submit his brief to the Court on June 15, 2012, the deadline set by the Court for the submission of briefs. NATURE AND EXTENT OF THE INTEREST OF THE AMICUS CURIAE
A micus is President of Oklahoma City University, founded in 1904 as Epworth

University, a private, liberal arts university affiliated with the United Methodist Church ("Church"). The University's Mission Statement directly acknowledges the significance of its affiliation with the Church: "Oklahoma City University embraces the United Methodist tradition of scholarship and service and welcomes all faiths in a culturally rich community that is dedicated to student welfare and success. Men and women pursue academic excellence through a rigorous curriculum that focuses on students' intellectual, moral and spiritual development to prepare them to become effective leaders in service to their communities."' As a private, independent university located in the state of Oklahoma that meets the accreditation standards set both by the State Regents of Higher Education ("Regents") and the Higher Learning Commission of the North Central Association of Colleges and Schools, the University is eligible to participate in the Oklahoma Tuition Equalization Grant program ("OTEG"), established by the Oklahoma Tuition Equalization Grant Act ("OTEG Act"), 70 O.S. 2631 et seq. The purpose of the OTEG scholarship, as stated in the OTEG Act, "is to maximize the use of existing educational resources and facilities within this state, both public and private." 70 O.S. 2631. OTEG provides full-time Oklahoma resident undergraduate students of limited means, who are enrolled in an

The University Mission Statement can be found at http://www.okcu.edu/about/quickfacts/ (last visited June 13, 2012).

eligible independent, not-for-profit institution of higher education, a $2,000 grant per academic year or a $1,000 grant per academic semester. According to the Oklahoma Independent Colleges and Universities ("OICU"), of which the University is a member (as is every OTEG eligible institution), OTEG scholarships "frequently make the difference in whether these Oklahoma students can enroll" in these colleges and universities. The OICU estimates that, since the scholarship's inception in 2003, the state of Oklahoma has saved over $50,000,000 in public higher education costs by facilitating, through OTEG, the enrollment of Oklahoma students in independent institutions of higher education.2 The considerable state appropriations dedicated to OTEG demonstrate the program's importance to the well-being of the state and the lives of its young residents. In the 2010-11 academic year, the state expended $3,803,000 on OTEG scholarships. Of this amount, $482,000 was expended on students attending the University. For 2011-12, $3,500,000 was allocated for OTEG scholarships. Of this amount, $444,000 was allocated for students enrolled at the University. Thus, OTEG scholarships are a significant component of the financial aid packages that make it possible for students of limited means to attend the University.3 A micus is deeply interested in the outcome of this litigation because the structure of the OTEG program is nearly identical to that of the Lindsey Nicole Henry Scholarship Program for Students With Disabilities ("Henry scholarship"). Both programs provide state-funded scholarships to eligible students who attend private institutions, a substantial

2 The information cited can be found at http://www.oicu.org/documents/WhatisOTEGHandout.pdf .(last visited June 13, 2012). 3 The data can be found at http://okhighered.org/admin-fac/FinAidResources/docs/oteg-fund-allocation1112 (last visited June 13, 2012).

majority of which are religiously-affiliated institutions. 4 The central purpose of both programs is to provide essential services to students by facilitating, in a world of scarce resources, the use of all appropriate state educational institutions, public or private, to provide students the services they require. Both programs rely on students and parents to choose the institution the student will attend and then apply to the state for scholarships to be applied to the tuition charges at the institutions they have chosen. If the ruling of the district court in this case is affirmed, amicus is justifiably concerned that invalidation of the Henry scholarship will threaten the legal viability of the OTEG scholarship. A ruling, on the other hand, by this Court reversing the decision of the district court and, thus, reaffirming the proper legal principles that govern programs such as OTEG and the Henry scholarship, will remove the legal cloud this litigation has placed over the head of the students and institutions that rely on OTEG. FACTS AND LAW TO BE ADDRESSED BY AMICUS CURIAE If permitted by this Court, amicus, because both his distinct familiarity with and profound interest in preserving programs such as OTEG and the Henry scholarship, will shed particular light on why programs of these kind should survive any challenge under Art. II, 5 of the Oklahoma Constitution. 5 Both the text of this provision and the longstanding precedent of this Court interpreting this language make clear that a state-funded program is constitutional, even if a sectarian institution is incidentally benefited, as long
Indeed, unlike those eligible to enroll students receiving Henry scholarships, all of the OTEG eligible institutions have some kind of religious affiliation. These institutions include: Bacone College, Family of Faith Bible College, Hillsdale Free Will Baptist College, Mid -America Christian University, Oklahoma Baptist University, Oklahoma Christian University, Oklahoma City University, Oklahoma Wesleyan University, Oral Roberts University, Southern Nazarene University, Southwestern Christian University, St. Gregory's University, and The University of Tulsa. 5 This section provides that "No public money or property shall ever be appropriated, applied, donated, used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such." OKLA. CONST., ART.II, 5.

as it: (1) serves a public purpose; and (2) the state is provided sufficient consideration for any public money or property expended. If permitted, amicus will demonstrate factually how the Henry scholarship is not a constitutional outlier in Oklahoma law and policy and legally how programs such as OTEG and the Henry scholarship are constitutionally valid under the long-standing precedent of this Court. In conclusion, we respectfully request that this Court grant the application of Robert H. Henry to file a brief as amicus curiae. Respectfully submitted,

illiam S. Price PHILLIPS MURRAH P.C. Corporate Tower, Thirteenth Floor 101 N. Robinson Oklahoma City, OK 73102 Tel.: (405) 552-2403 Fax: (405) 235-4133 wspriceaphillipsmurrah.corn
ATTORNEY FOR ROBERT H. HENRY

CERTIFICATE OF MAILING The undersigned hereby certifies that on this 14th day of June 2012, a true and correct copy of the above and foregoing Application was mailed, with postage prepaid thereon, to: J. Douglas Mann Frederick J. Hegenbart Karen L. Long Jerry A. Richardson ROSENSTEIN, FIST & RINGOLD 525 S. Main, Suite 700 Tulsa, OK 74103 Attorneys for Appellees Eric S. Baxter The Becket Fund for Religious Liberty 3000 K Street NW, Suite 220 Washington, D.C. 20007 Attorneys for Appellants Andrew W. Lester Matt Hopkins Carrie L. Vaughn LESTER, LOVING & DAVIES, PC 1701 South Kelly Avenue Edmond, OK 73103 Attorneys for Appellants Patrick R. Wyrick Solicitor General Okla. Office of the Attorney General 313 NE 21 st Street Oklahoma City, OK 73105 Attorney for Attorney General E. Scott Pruitt, Appellant

S/

illiam S. Price

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