Judge upholds Nevada education savings accounts

Travis Pillow

Nevada’s near-universal education savings accounts, one of the most far-reaching educational choice programs in the country, don’t violate its constitution, a state district court ruled Wednesday.

The lawsuit has held the program in limbo, as more than 6,000 families applied to participate. An court injunction continues to stall the program, created in a law passed last year, while appeals and a separate lawsuit are resolved.

The ESA program allows parents to pay for a range of educational expenses, including tutoring, tuition, individual courses and home school curriculum.  Like school vouchers, and unlike tax credit scholarships, the accounts are funded directly from the state treasury.

The American Civil Liberties Union and other groups challenged the ESAs last year, making two arguments often raised in school choice lawsuits.

  1. Citing the Florida Supreme Court’s 2006 ruling in Bush v. Holmes, in which it found a voucher program unconstitutional, they argued the program violates a requirement in the Nevada state constitution that the Legislature fund a “uniform” public school system.
  2. They argued that because parents can use the accounts to pay tuition at faith-based schools – and that because it’s a near certainty some would – the ESA law violates a prohibition on public funds going to “sectarian” religious institutions. (Such prohibitions are often known as Blaine Amendments.)

District Court Judge Eric Johnson rejected both arguments. 

In his 45-page decision, Johnson said he disagreed with the reasoning in Holmes. Like in Florida, he wrote, the Legislature in Nevada is required to fund a “uniform” system of public schools. But that doesn’t prohibit lawmakers from creating school choice programs above and beyond it.

“The ESA program provides parents with funding they may use to choose different educational opportunities for their children and does not replace the public school system. The Legislature has continued to meet its constitutional obligation of providing for public schools which are open to all Nevada school children as required by Article XI, section 2” of the state constitution, he wrote.

Florida’s constitution authorizes the Legislature to create “other public education programs that the needs of the people may require” in addition to its public school system. Johnson held that Nevada’s constitution gives lawmakers even wider latitude.

As for the Blaine Amendment, Johnson wrote the program did not run afoul of its prohibitions, since it did not set aside state funds to “build up” any religious institution or sect.

“Parents, if they choose to use the ESA program, must expend the ESA funds for secular education goods and services, even if they choose to obtain these services from religion affiliated schools,” he wrote.

It’s likely the case will be appealed to the state Supreme Court, and a separate legal challenge is still pending. But in the meantime, school choice advocates have cheered the decision.

According to the Reno Gazette-Journal, Nevada’s attorney general called the ruling a “huge and important step in creating certainty for the thousands of families waiting to participate” in the ESA program.

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