Newspaper column: Education savings accounts law still lies in legal limbo

On New Year’s Day Nevada’s Senate Bill 302 — creating education savings accounts (ESAs) available to parents who pull their children out of public school and enroll them in private schools or homeschool them — became law. Or did it?

After a dreadful session that saw long-needed reforms to public pensions, public unions and prevailing wage laws languish in a Republican-majority Legislature, as well as the passage of $1.5 billion in tax hikes, SB302 was touted as the one redeeming accomplishment, but they may have managed to bollux that too.

Under SB302 state Treasurer Dan Schwartz is authorized to set up savings accounts for parents who choose not to avail themselves of public schools. For most parents the annual account will be equal to 90 percent of the public school per-pupil state funding allotment or about $5,100 a year. Parents earning less than 185 percent of the federal poverty level would get 100 percent of state funding or about $5,700.

In a sop to Democrats who whined that the law would deprive public schools of desperately needed funding — even though public schools get another $4,000 per pupil from other sources than the state and that money would continue — the ESA law requires that, in order to be eligible for savings accounts, students must be enrolled in public school for 100 consecutive days.

This means that those who already homeschool or send their children to private school would have to needlessly disrupt their education and enroll them in public school for more than a semester. The school year is 180 days.

The lawmakers would have been well advised to have just allowed those already in public school to immediately become eligible, thus saving each public school $4,000 per departed student and then allow those privately schooled to become eligible in a year or so. Instead, they imposed this musical chairs abomination.

In order to put a little sanity and clarity in the eligibility rules, Schwartz decided to write into them an exception for active-duty military families who are often forced to relocate on short notice and children under age 7 or incoming kindergarteners, even though the law contains no such exceptions.

Gov. Brian Sandoval had a chance to remedy this oversight in the recent special session — one in which compliant lawmakers doled out tax breaks and credits for a company that claims it will build electric cars in North Las Vegas — by adding to the agenda a bill to amend SB302. He did not. Instead, the lawmakers cobbled together a legally suspect Assembly Concurrent Resolution 1 meant to show legislative intent matched Schwartz’s rewriting of the law.

Of course, the whole thing has been tied up in court since shortly after the final gavel banged and that resolution has little chance of clarifying things.

First, the American Civil Liberties Union filed suit claiming the law allows parents to use tax money to pay tuition at church-based schools, saying this violates the state Constitution’s Blaine Amendment prohibiting tax money going for religious purposes.

Then a group calling itself Educate Nevada Now sued, claiming the law reduces state funding for public schools to below a level determined to be constitutionally sufficient.

Recently, Lt. Gov. Mark Hutchison, acting as an attorney for some parents stuck in a quandary as to whether their children are or will be eligible for ESAs, filed a lawsuit asking the courts to declare the law constitutional.

That created a collision with Treasurer Schwartz who lambasted Hutchison, saying there are already two suits being defended by Attorney General Adam Laxalt and this one is a “side track to nowhere” that could jeopardize Laxalt’s legal arguments.

“Hoping to bypass the current cases, the Lieutenant Governor could well jeopardize the Attorney General’s defense of Nevada’s ESA program, endangering very real benefits for the children and parents of Nevada,” Schwartz said in a statement.

Meanwhile, parents and their children are in legal limbo, though Schwartz has set a goal of opening ESAs in February, if the courts allow.

If SB302 gets shot down, the 2015 Legislature will have been for naught.

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.

Update: Attorney General Laxalt has filed a motion asking that Lt. Gov. Hutchison’s lawsuit be dismissed.

“The lawsuit brought by the Hutchison firm endangers the State’s ongoing defense of the Education Savings Account program, intended to benefit Nevada’s schoolchildren and parents,” said Laxalt. “My office believes that the suit does nothing but distract and divide the State’s efforts to defend the program from the two real challenges to the ESA program which lawyers in my office have been working non-stop to brief, argue and defend. Just as I have requested in a private conversation with Mark Hutchison, I am now publicly asking that his firm voluntarily and immediately withdraw this lawsuit. In the meantime, I will continue to dedicate all necessary resources toward defending the program and to defeating any lawsuit like this one that could delay its implementation. Thousands of Nevada’s families are counting on the program to be realized and the Attorney General’s office will continue its fight to make that a reality.”

ESA motion

The Las Vegas newspaper today quoted Hutchison as saying, “I look forward to responding to the attorney general’s motion to dismiss and presenting oral arguments before the court, which I intend to do personall. I invite Attorney General Laxalt to do the same.

“A judge, not a politician, will now decide the issue.”


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