The nation’s broadest educational choice program should pass constitutional muster because its funding is controlled by parents, not the state, lawyers told the Nevada Supreme Court.
The high court heard back-to-back arguments in two separate lawsuits challenging Nevada’s new education savings accounts Friday.
The cases are closely watched because they could decide the fate of the nation’s first near-universal private school choice program. They’re also among the first major lawsuits that will decide how ESAs, often billed as the way of the future for educational choice, square with constitutional provisions that sometimes create legal roadblocks for conventional school vouchers.
Nevada’s program would allow any public-school parent to withdraw their child and receive between $5,000 and $6,000 to cover a range of educational services, including private school tuition or home schooling expenses.
More than 5,000 students have signed up for the accounts, even though a court injunction has put the program on hold. The Las Vegas Sun reported that hundreds of partisans on both sides of the case rallied outside the courthouse before the hearing.
The plaintiffs in Duncan v. State of Nevada argue ESAs run afoul of Nevada’s prohibition on state aid to religious institutions.
Richard Katskee, the legal director for Americans United for Separation of Church and State, argued justices should block the use of ESAs to pay tuition at religious schools. He said the state’s Blaine Amendment goes further than the U.S. Constitution in preventing public money from supporting “sectarian” institutions.
There’s a problem with that argument, countered Paul Clement, a high-profile attorney helping the state defend the program. It would be unconstitutional for the state simply to hand taxpayer money directly to religious institutions. But it can create a health savings account program that helps patients to pay for surgery at a Catholic hospital. It can offer a daycare subsidy that some parents might use at parochial schools. And the government can send firefighters to battle blazes that endanger church buildings.
Similarly, Clement argued, the state created ESAs to provide an important public service — education. If some parents used them to educate their children in religious schools, that wouldn’t mean the government was propping up religious institutions in violation of the state constitution.
Tim Keller, an attorney with the Institute for Justice, which has intervened in the case on behalf parents who want to access ESAs, reinforced that point. He argued his clients were more than “inconsequential conduits used by the state to funnel money to religious institutions.”
“Parents make genuine, independent choices under this program,” he said. “The state provides them with flexible education spending accounts, and it is the parents who decide where and how to spend their monies.”
Katskee, however, said the state wouldn’t cut checks to parents. Under the program, the state would send money to schools (or tutors or textbook providers) at parents’ request. Therefore, he argued, the government would ultimately aid religious institutions.
“The money is completely owned by the state, and administered by the state, and paid by the state,” he said.
A related lawsuit, Lopez v. Schwartz, centers on funding for the program. This is a thorny issue in Nevada, where the state constitution requires lawmakers to fund public education before they address any other priorities.
But it touches issues that have arisen in other states, like the impact of private choice programs on public schools, and a constitutional requirement for a “uniform” public education system.
Tamerlin Godley, a lawyer representing public-school parents challenging the program, said every student who signs up for an ESA will receive money that otherwise would have gone to public schools. State funding, she said, should not be “diverted” to pay for private options.
Godley noted that early sign-up information suggests parents hoping to enroll their children in the program come disproportionately from affluent ZIP codes, meaning some of the state’s better-off students would soon leave public schools if justices upheld the program.
“Pulling all of that away from the public schools really has the potential to undermine the public school system,” she said.
Clement, the attorney for the state and a former Solicitor General in the George W. Bush Administration, noted Nevada’s school funding system includes a “hold-harmless” provision, which ensurers public schools won’t take a major financial hit if there’s a mass exodus for any reason — including students signing up for ESAs or moving out of state.
What’s more, he said, the ESAs would be funded only from the pot of education funding provided by the state. If students left public schools to enroll in the choice program, public schools would keep revenues that school districts raised through local taxes. As a result, funding per pupil would actually rise.
“No school, no school district, is going to lose a significant amount of money” as a result of the program, he said.
This post has been updated.