THE STATE OF OKLAHOMA FILEL

SUPREME COURT STATE OF OKLAHOMA

JUN 1 5 2012

MICHAEL S. RICHIE CLERK OF

THE APPELLATE COURTS

IN THE SUPREME COURT OF

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. )

Case No. 110694, consolidated ) with Case No. 110693

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. )

APPELLEES' OBJECTION TO RULE 1.12 BRIEF STATEMENT OF AMICUS CURIAE

Plaintiffs/Appellees, 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, respectfully submit their objection to the statement of interest offered by

Tai Chan Du ("Du") to file a brief as amicus curiae.

By order entered on May 31, 2012, the Court set a briefing schedule in the case, directing

the Appellants to file their additional briefing by June 15, 2012, and directing the Appellees to

file their response briefs by June 29, 2012. On June 7, 2012, Du filed his statement of interest

under Rule 1.12 requesting the Court grant him leave to submit a brief as amicus curiae on behalf

of the Appellants, regarding the constitutionality of the "Lindsey Nicole Henry Scholarships for

Students with Disabilities Program Act," OKLA. STAT. tit. 70, §§ 13-101.1 and 13-101.2 (2011)

(hereinafter referred to as "Scholarship Act").

As the Appellees explained in their Response in Opposition to Defendants/Appellants'

Motion for Briefing on Appeal, filed in this matter on May 25, 2012, the Appellees believe the

parties thoroughly briefed all of the issues presented on this appeal in their summary judgment

briefs in the district court. Although the Court has authorized the parties to file additional briefs,

the Appellees do not believe that amicus curiae briefs will be of assistance in the decision of this

appeal. Rather than assisting the Court, the Appellees believe that a profusion of amicus briefs

from advocates for competing special interests would lead to confusion of the issues and make

the Court's job more difficult.

Rule 1.12(b)(1) requires that an amicus curiae's application "concisely disclose[] the

nature and extent of the applicant's interest, state[] any facts or questions of law which may not

be presented adequately by the litigants, and the relevancy of these facts or questions of law to

the disposition of the cause." Upon review of Rule 1.12, the Appellees request that the Court

deny Du the opportunity to file a brief as an amicus curiae in this matter because: (i) Du's

statement of interest is contrary to its stated purpose; (ii) the Appellants are in the position to

argue the same points raised by Du in his statement of interest in their own briefs; (iii) Du's

statement of interest misstates portions of the statutes at issue with regard to the equal protection

issue and his points are irrelevant; and (iv) Du's request is untimely under Rule 1.12.

Du describes the nature of his interest "purely as an advocate for students with disabilities

and their parents[,]" and he further explains that "[t]he extent of my interest in this case is to

assure that parents and students with disabilities are not liable to suit by school districts when

applying for a scholarship authorized by the Henry Scholarship Act for Students with

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Disabilities[.]" See Brief Statement of Amicus Curiae, p.1. 1 However, upon review of the

remainder of Du's statement, he mentions absolutely nothing related to his stated purpose, but

instead his focus is solely on showing how disabled students who are on an individualized

education plan ("IEP") under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400

et seq. (the "IDEA"), and students with disabilities who are on accommodation plans under the

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, are not similarly situated. Du

attempts to identify differences between the Acts in statutory text, funding sources, and with

regard to the rights of students and parents—all related to the Appellees' constitutional challenge

that the Scholarship Act violates equal protection rights under the Oklahoma Constitution.

Although the Court has granted the parties to this action leave to file additional briefing

on the issues in the case, Du has failed to explain why the Appellants cannot raise the points he

seeks to address in their additional briefing to be filed with the Court by June 15, 2012. In any

event, Du must comply with the requirements of Rule 1.12(c), i.e., "counsel for an amicus curiae

shall attempt to ascertain the arguments which will be made in the brief of any party whose

positions the amicus is supporting in order to avoid any unnecessary repetition of argument."

Moreover, several of the distinctions that Du alleges exist between the IDEA and Section

504 misstate the law and/or are irrelevant to determining whether the disabled students to whom

the Acts apply are similarly situated for purposes of determining issues related to equal

protection under the Oklahoma Constitution in this matter. As a general point related to all of

Du's arguments, in his attempt to reveal differences between the two Acts, he fails to account for

the underlying purpose of both Acts—the protection of disabled students.

Contrary to Du's stated purpose, the Appellees sought a declaratory judgment in order for the constitutionality of the Scholarship Act to be determined. The Appellees have not brought an action seeking to recover damages from the parents for applying for a scholarship for their children.

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To the extent Du attempts to raise relevant differences between the Acts based on sources

of funding, oversight, and student and parental rights, he fails to do so. For example, he alleges

that Section 504 does not provide school districts with federal assistance in meeting the

accommodation needs of disabled students, while the IDEA relies on such funding. Although

the distinction made by Du is correct, it is of no consequence with regard to the Scholarship Act

because the Scholarship Act relies solely on state funding.

Further, several of the distinctions addressed by Du with regard to student and parental

rights are false. Du claims that while the IDEA requires written parental consent before "a

student with a disability [is] comprehensively evaluated by a multidisciplinary team[,]" Section

504 merely requires parental notification and that the evaluation be administered by

knowledgeable individuals. See Brief Statement of Amicus Curiae, p. 5. Du is wrong. Section

504 requires informed parental permission for initial evaluations. See OCR Section 504 FAQ

No. 27, http://www2.ed.gov/about/offices/list/ocr/504faq.html . Du also states that "the IDEA

does not require reevaluation before significant change in placement, where as § 504 does

require a reevaluation before a significant change in placement of the student with a disability."

See Brief Statement of Amicus Curiae, p. 5. This is also incorrect. Although the IDEA

regulations governing disciplinary procedures, including a change of placement, 34 C.F.R. §§

300.530 et seq., do not use the term "reevaluation," the regulations establish that the IEP team

must make a determination of whether the disciplinary infraction was a manifestation of the

student's disability before implementing a disciplinary change of placement. See 34 C.F.R. §

300.530(f). The Oklahoma State Department of Education's Policies and Procedures for Special

Education in Oklahoma, http://ok.gov/sde/sites/ok.gov.sde/files/SpecEd-PoliciesProceclures.pdf,

makes clear at pp. 162-71 that a reevaluation is part of this process. It is therefore incorrect to

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assert that the IDEA allows a school district unilaterally to change the placement of a student

with disabilities without performing any type of reevaluation.

Finally, even if the Court determines that Du's statement of interest complies with Rule

1.12(b), his brief will be untimely under the Court's briefing schedule. Rule 1.12(d)(1) states

that a brief amicus curiae "must be filed within the briefing cycle set for the party supported,"

and the rule is clear that "[t]he assignment and disposition of a cause will not be delayed pending

action on a motion for leave to file an amicus curiae brief or to await the filing of a brief amicus

curiae." Rule 1.12(d)(1) further requires that "extraordinary cause . . . be shown before an

amicus curiae will be permitted to file a brief at any time other than during the normal briefing

cycle[.]" [emphasis added].

Du filed his statement of interest on June 7, 2012. Rule 1.12(b)(1) requires that the

Appellees file their objection by June 17, 2012, or within ten days. 2 Currently, the Appellants'

additional briefing must be filed by June 15, 2012. In order to comply with Rule 1.12 and the

Court's briefing schedule, Du should have sought leave from the Court to file a brief amicus

curiae well before June 7, 2012. Further, a review of his statement of interest reveals no

"extraordinary cause" for the Court to allow for an amicus curiae brief to be filed outside the

June 15 briefing deadline imposed on the Appellants. Thus, the Appellees would request that the

Court deny Du the opportunity to file a brief amicus curiae outside the current briefing schedule

for failure to comply with Rule 1.12.

For the reasons set forth herein, the Appellees request that the Court deny Du the

opportunity to file an amicus curiae brief in this matter.

2June 17, 2012, falls on a Sunday. Therefore, the Appellees' objection is due on

Monday, June 18, 2012. See Okla. Sup. Ct. Rule 1.3.

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Respectfully submitted,

ROSENSTEIN, FIST & RINGOLD

byglas M n, OBA #5663

ederick J. Hegenbart, OBA #10846 Karen L. Long, OBA #5510 Jerry A. Richardson, OBA #10455 525 S. Main, Suite 700 Tulsa, OK 74103 (918) 585-9211 (918) 583-5617 facsimile E-mail: dougnarfrlaw.com

fredh(&rfrlaw.com karenVit)rfrlaw.com jerryrCierfrlaw.com

ATTORNEYS FOR APPELLEES

CERTIFICATE OF MAILING

I hereby certify that on the 15 th day of June, 2012, I caused a true and correct copy of the above and foregoing instrument to be mailed, via certified mail, return receipt requested, with sufficient postage prepaid thereon, to:

Andrew W. Lester Matt Hopkins Carrie L. Vaughn LESTER, LOVING & DAVIES, PC 1701 South Kelly Avenue Edmond, Oklahoma 73103

Patrick R. Wyrick Solicitor General Oklahoma Office of the Attorney General 313 NE 21 St Street Oklahoma City, Oklahoma 73105

Steven K. Balman FELDMAN, FRANDEN, WOODWARD & FARRIS 2 West 2 nd Street, Suite 900 Tulsa, Oklahoma 74103

Eric S. Baxter The Becket Fund for Religious Liberty 3000 K Street NW, Suite 220 Washington, D.C. 20007

Tai Chan Du 3324 North Classen Boulevard Oklahoma City, Oklahoma 73118

William H. Hickman Brad S. Clark HICKMAN LAW GROUP 119 N. Robinson, Suite 300 Oklahoma City, Oklahoma 73102

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Andrea R. Kunkel

Julie Miller Ryan Owens Stephanie Mather 2901 N. Lincoln Blvd. 2801 N. Lincoln Blvd., Ste. 125 Oklahoma City, Oklahoma 73105 Oklahoma City, Oklahoma 73105

by depositing it in the U.S. Mails, postage prepaid.

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