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,

FILE", 8UPREME STATE OF COURT OKLAHOMA

silJN 1 4 2012
MI CHAEL S. RICHE CLERK OF THE APPELLATE COURTS

Plaintiffs/Appellees,
v. Russell Spry, Stephanie Spry, Tim Tylicki, Kimberly Tylicki, Tim Fisher, Kristin Fisher, Stephan Hipskind, Stephanie Hipskind, Jerry Sneed, and Shanna Sneed,

Case No. 110694 (consolidated with No. 110693)

Defendants/Appellants;
E. Scott Pruitt, Attorney General of the State of Oklahoma,

Appellant.

Application To File Amicus Curiae Brief Without Parties' Consent by American Civil Liberties Union of Oklahoma, American Civil Liberties Union, and Americans United for Separation of Church and State Pursuant to Supreme Court Rule 1.12, the Applicants American Civil Liberties Union of Oklahoma ("ACLU of Oklahoma"), American Civil Liberties Union ("ACLU"), and Americans United for Separation of Church and State ("Americans United") respectfully request permission to file a brief in support of the Plaintiffs/ Appellees. Both Appellants and the Attorney General have consented to this application. Appellees have declined to consent to the filing of any amicus briefs.

Applicants will assist the Court in analyzing two issues: (1) the history and intent of the framers of the Oklahoma state constitutional provisions at issue in this case; and (2) the interpretation and application of state constitutions with provisions similar to the relevant Oklahoma state constitutional provisions. Discussion
Interest and Expertise of A mici. Applicants are nonprofit, nonsectarian,

public-interest organizations. Each organization works to advance the rights of individuals and religious communities to worship as they see fit, and to preserve the separation of church and state as a vital component of democratic government. Applicants have long studied school-voucher programs. They are especially concerned about voucher programs that divert taxpayer funds from public schools which strive to educate all students, regardless of religious beliefs to fund private, religious schools. In recent years, Americans United and the ACLU have appeared as counsel or
amici in numerous cases addressing the constitutionality of school-voucher programs,

including cases involving state-constitutional provisions similar to those found in the Oklahoma Constitution. See, e.g., Meredith v. Daniels, No. 49S00-1203-PL-172 (Ind. review granted March 17, 2012) (Americans United as amicus); LaRue v. Colo. Bd. of
Educ., Nos. 11-cv-4424, 11-cv-4427, slip op. (Colo. Dist. Ct. Aug. 12, 2011) (Americans

United and ACLU as co-counsel); Cain v. Home, 202 P.3d 1178 (Ariz. 2009) (ACLU as plaintiff; Americans United as amicus); Bush v. Holmes, 919 So. 2d 392 (Fla. 2006)

(Americans United and the ACLU as co-counsel); Owens v. Colo. Cong. of Parents,
Teachers & Students, 92 P.3d 933 (Colo. 2004) (Americans United as counsel). Issues To Be A ddressed in A micus Brief Applicants intend to address two issues not

presented fully by the parties. First, Applicants will provide the Court with historical information about the framing of the Oklahoma Constitution generally, and its treatment of education and religion specifically. Among other things, Applicants will detail the circumstances giving rise to the Oklahoma Constitution's provisions governing public schools, the funding of education, and the No-Aid Clause, Okla. Const. art. II, 5, whose application directly informs this appeal. Applicants' analysis will also address and rebut the likely arguments from Appellants about the circumstances underlying the No-Aid Clause. See,
e.g., Defendants' Motion for Summary Judgment at 20 (claiming that the No-Aid Clause

was motivated by anti-Catholic animus). Second, Applicants will use their extensive experience litigating school-voucher cases in other states to address how analogous state constitutional provisions and the decisions interpreting those provisions inform the interpretation of the Oklahoma No-Aid Clause. Numerous state-constitutional challenges to school voucher laws have involved provisions similar to those found in the Oklahoma Constitution. One or more Applicants were directly involved in many of those cases, and have closely studied most of the others. As a result, Applicants are uniquely situated to supply the Court with a thorough analysis of how courts from other states have interpreted analogous constitutional provisions. 3

The issues identified by the Applicants were raised in the Petition in Error. See Pet. in Error 3(b) (addressing the constitutionality of the school-voucher program under Article II, 5 of the Oklahoma Constitution); id. 5 (addressing the status of the Oklahoma No-Aid Clause under the Federal Constitution).

Timing of Brief. Under this Court's order, Appellants' briefs are due on June 15,
2012, and Appellees' brief is due on June 29, 2012. As arnici supporting Appellees, Applicants' brief would be filed on June 29, 2012. See Okla. Sup. Ct. R. 1.12(d)(1).

Conclusion Applicants respectfully request that the Court grant leave to appear as amid and to file a brief in support of Plaintiffs/ Appellees. Respectfully submitted,

Ryan D. Kiesel (OBA #21254)

AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA FOUNDATION

3000 Paseo Drive Oklahoma City, OK 73103 (405) 524-8511 rkiesel@acluok.org June 14, 2012 Counsel for Amici

Certificate of Service On June _, 2012, I mailed a copy of the foregoing motion, by first-class U.S. Mail, to the following counsel of record: Andrew W. Lester Carrie L. Vaughn D. Matt Hopkins
LESTER, LOVING & DAVIES, P.C.

Eric S. Baxter
THE BECKET FUND FOR RELIGIOUS LIBERTY

1701 South Kelly Avenue Edmond, OK 73013-3623 Patrick R. Wyrick Solicitor General
OKLAHOMA OFFICE OF THE ATTORNEY GENERAL

3000 K Street NW, Suite 220 Washington, DC 20007

J. Douglas Mann

Frederick J. Hegenbart Karen L. Long Jerry A. Richardson

ROSENSI EIN, FIST & RINGOLD

313 NE 21st Street Oklahoma City, OK 73105 Tai Chan Du 3324 N. Classen Blvd. Oklahoma City, OK 73118

525 South Main, Suite 700

Tulsa, OK 74103

Steven K. Balman
FELDMAN, FRANDEN, WOODARD & FARRIS

2 West 2nd Street, Suite 900 Tulsa, OK 74103 William H. Hickman Brad S. Clark 119 N. Robinson, Suite 300 Oklahoma City, OK 73102
HICKMAN LAW GROUP, PLLC

Ryan D. Kiesel