The future of the nation’s most expansive school choice program is now in the hands of the Nevada Supreme Court, which will soon decide two cases brought against the state’s education savings account (ESA) program.
Nevada’s ESA program, enacted in 2015, is the nation’s first universal ESA program, which means nearly all (96 percent) Nevada children are eligible to participate. EdChoice, formerly known as the Friedman Foundation for Educational Choice, reports under the ESA program, “Students qualify if they attended a Nevada public school for at least 100 days immediately prior to establishing an ESA.”
ESAs give parents access to all or a portion of the public funding allotted for their children’s education, allowing them to remove their children from public schools and use the ESA to pay for private school tuition, textbooks, tutoring, and other educational resources. So far, more than 7,000 parents have applied for a Nevada ESA. A Nevada District Court judge put an injunction on the program in January, and the state’s treasurer’s office has not been able to distribute any ESA funds as a result of the decision. Parents will have to wait for the Nevada Supreme Court’s final ruling to know if they’ll have access to the program.
The American Civil Liberties Union (ACLU) of Nevada is alleging the ESA program is unconstitutional because it uses public funds for religious purposes. At the center of ACLU’s lawsuit is a Blaine amendment to the Nevada Constitution. Blaine amendments restrict public money from funding religious schools. They currently exist in more than half of all state constitutions.
Nevada District Court Judge Eric Johnson dismissed ACLU’s case in May, ruling, “The state has no influence or control over how any parent makes his or her genuine and independent choice to spend his or her ESA funds.”
In a separate case, the group Educate Nevada Now claimed the ESA program is unconstitutional because it diverts money intended to fund public schools exclusively. In January, a District Court judge granted Educate Nevada Now its request for a preliminary injunction to halt the program. In March, the state attorney general, who is defending the ESA program, appealed the judge’s motion for an injunction to the Nevada Supreme Court.
The Supreme Court heard oral arguments in the appeals of the two cases in July. The court said it would make a decision quickly because parents and students are waiting on its decision. At mid-August press time, the court had yet to rule.
Skeptical Toward ACLU’s Position
Tim Keller, managing attorney of the Arizona office of the Institute for Justice, says the judges did not seem interested in ACLU’s proposal.
“The ACLU would like the opportunity to examine the admission practices, hiring practices, and curriculum of all private schools which accept money from the state,” Keller said. “But the court didn’t seem too interested in the ACLU doing this and was apparently more concerned with determining if parents are making independent decisions about how they use the ESAs without any influence from the state.”
Michael Schaus, communications director at the Nevada Policy Research Institute, also says the judges did not seem convinced by ACLU’s arguments.
“The judges asked if giving parents education savings accounts to spend any way they wanted, even if they decided to send their child to a religious school, was any different from government employees using their health savings accounts to be treated at a Jewish or Catholic hospital,” Schaus said. “They did not seem sympathetic to the ACLU’s argument.”
Judging from a rally outside the courthouse before the hearings, Keller says the pro-ESA movement seems to have strong support.
“It looked like there were three times as many parents who supported the program as there were against it,” Keller said. “The parents told many compelling stories about why they supported the program, and the judges were at least aware they were there, which is good, because this is a very practical case with real-world consequences which are going to affect a lot people.”
Schaus says the ruling will impact other programs or prospective programs across the country.
“[The] ESA program in Nevada is the most expansive and inclusive school choice program in the United States,” Schaus said. “If the Nevada Supreme Court upholds this case, I expect we will see a modern-day gold rush, as more states create their own ESA programs along with a wave of other innovative school choice programs.”
Kenneth Artz ([email protected]) writes from Dallas, Texas.