A nonprofit public interest law firm representing five Nevada families is intervening to oppose two lawsuits filed to challenge the legality of the newly enacted Nevada Education Savings Account Program (NESA).
The lawsuits were filed by the American Civil Liberties Union (ACLU) of Nevada and Educate Nevada Now (ENN). The Institute for Justice (IJ) is representing the five families against the ACLU and ENN.
The ACLU of Nevada filed a lawsuit on August 27 challenging the constitutionality of NESA, claiming it furthers a religious and sectarian purpose by allowing parents to choose religious educational options for their children. The ACLU argues the education savings account (ESA) program “violates the Nevada Constitution’s prohibition against the use of public money for sectarian purposes.”
On September 9, ENN filed the second lawsuit, arguing the public school system is the only way Nevada is allowed to pay for children’s education.
IJ Senior Attorney Tim Keller told School Reform News IJ was involved in the drafting of the NESA and expected opposition from anti-choice groups.
“The ACLU’s lawsuit was not a surprise,” Keller said. “We fully expected the program to be challenged. We knew there were those who believe this program violates the Nevada constitution.”
NESA allows parents who opt their children into the program to determine where and how their child is educated. State-allocated funding for the student is put into an education savings account which can be used to pay for private school, textbooks, tutors, therapies, and other approved educational services.
The ACLU claims allowing parents to choose to send their child to a religious school means the program is furthering a religious or sectarian purpose.
Emphasizes Parental Choice
Keller says the ACLU lawsuit is baseless because allowing parents to make a decision about how to educate their children does not link church and state.
“The only purpose that the program serves is education,” said Keller. “Families are able to select the best option to meet the educational needs of their children. No government official is using a single dollar to fund or further any sectarian or religious purpose. Not one dollar is preordained for any particular use other than education.”
State Sen. Scott Hammond, who wrote the NESA legislation, says the lawsuit was expected, but with more than 2,800 families signing up for the ESA program as of August 27, he thinks the courts will uphold the program.
“We knew the lawsuit was coming,” Hammond told School Reform News. “This won’t deter us. Parents want more say over their children’s education. They want to be able to individualize their child’s education, to choose what is best for their child. This lawsuit won’t deter parents from achieving this goal.”
Keller says the ACLU continuously refers to the ESA program as a voucher program because it knows “voucher” is a loaded term.
“The ACLU challenges school choice all across the country,” said Keller. “It is ironic, since liberty is in their name, that they would challenge programs that empower parents.
Claims of Funding Diversion
The ENN lawsuit claims NESA violates the Nevada Constitution’s ban on using public funding for private schools. The suit claims NESA would divert public funding away from public schools to private schools and other private expenditures.
Chantal Lovell, communications director at the Nevada Policy Research Institute, says the basis for this lawsuit is flawed.
“What this latest lawsuit ignores is the fact that Nevada’s ESA program actually increases per-pupil spending,” said Lovell. “In total, Nevada spends over $9,600 to educate each student, so each time a child takes an ESA that is valued between $5,100 and $5,700, thousands of dollars are left in the public school system despite the child having moved on to private education.”
‘Devastating for These Families’
The number of families signing up for NESA continues to grow each day.
“The fact that over 3,000 ESA applications have been filed in just a month’s time is proof of the desperation families in Nevada have felt and their eagerness to exercise choice,” said Lovell. “It would be devastating for these families if their children were forced to stay in failing classrooms because of a lawsuit.”
IJ is representing the following parents in the suit: Aurora Espinoza, a single mother who works full-time and has two daughters in public schools rated among the worst in the state; Aimee and Heath Hairr, whose eldest son was intensely bullied in his public school; Lara Allen, a mother of four children who are either gifted or have special needs; and Liz Robbins, a mother of seven children, three of whom have serious health problems requiring constant testing and treatment.
“There’s no question that Nevada’s public schools are failing our students,” Lovell said. “Despite decades of increased funding, many of Nevada’s public schools aren’t doing their job of preparing students for a successful life. [NESA] gives all students, regardless of their family’s income or their own abilities, the chance to leave a failing school and attend one that is exceptional.”
“I think states know they are doing something right in the education realm when their education reform efforts are challenged in court,” Keller said.
Keller expects more states to enact choice programs as legislators realize school choice is constitutional under both state and federal constitutions.
Heather Kays ([email protected]) is a research fellow with The Heartland Institute and is managing editor of School Reform News.
Image by Max Klingensmith.