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Oklahomans could benefit from well-designed 'loser pays' law

by The Oklahoman Editorial Board Published: May 6, 2013

GOV. Mary Fallin has signed a bill to deter frivolous lawsuits. Unfortunately, its protections apply only to very narrowly tailored circumstances.

Under House Bill 2160, if a school district sues a student or the child's parents and loses, the district will be required to pay the family's court costs. This law shouldn't be necessary, but recent events suggest otherwise.

After lawmakers approved scholarships for some students with special needs to attend private schools, the Jenks and Union school districts sued. A legal challenge was expected; that districts would sue parents of scholarship recipients was not.

Because the scholarship amounts are capped at 97.5 percent of the student's per-pupil cost, the law actually increases total per-pupil funding at schools losing students to private competitors thanks to the remaining 2.5 percent. When private tuition is less than the maximum award, the total difference stays with public schools. In fiscal year 2012, students with special needs qualified for $1,095,805 in scholarships; only $969,166 was required, leaving an extra $126,639 with public schools.

Basically, Jenks and Union claimed damages when the scholarship law actually improved their fiscal bottom lines and sued parents instead of the state. The state Supreme Court tossed the lawsuit, ruling the districts didn't have standing to sue and declaring “the parents are clearly not the proper parties” to be sued. In other words, Jenks and Union had no reason to sue and sued the wrong people. You don't get much more frivolous than that. The schools' actions were widely seen as designed to financially harm families who already face enormous challenges. HB 2160 may protect those families from similar abuses in the future.

However, out-of-control school administrators aren't the sole source of frivolous lawsuits. If a “loser pays” law is good policy in this instance, it should be good policy in similar cases involving undeniably frivolous litigation. A “loser pays” law, particularly if it includes mandatory sanctions for participating attorneys, could benefit all — including public schools routinely facing these lawsuits.

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by The Oklahoman Editorial Board
The Oklahoman Editorial Board consists of Gary Pierson, President and CEO of The Oklahoma Publishing Company; Christopher P. Reen, president and publisher of The Oklahoman; Kelly Dyer Fry, editor and vice president of news; Christy Gaylord...
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