Talk about splitting hairs.
District Judge James Wilson in Carson City on Monday issued an injunction blocking the implementation of the legislatively approved education savings accounts (ESAs), which were to be launched next month.
In doing so, the judge said the plaintiffs, who filed as a part of a group called Educate Nevada Now, “have carried their burden of proof that SB302 violates Article 11, Sections 6.1 and 6.2 (of the state Constitution) and that irreparable harm will result if an injunction is not entered.”
Those sections read:
1. In addition to other means provided for the support and maintenance of said university and common schools, the legislature shall provide for their support and maintenance by direct legislative appropriation from the general fund, upon the presentation of budgets in the manner required by law.
2. During a regular session of the Legislature, before any other appropriation is enacted to fund a portion of the state budget for the next ensuing biennium, the Legislature shall enact one or more appropriations to provide the money the Legislature deems to be sufficient, when combined with the local money reasonably available for this purpose, to fund the operation of the public schools in the State for kindergarten through grade 12 for the next ensuing biennium for the population reasonably estimated for that biennium.
The judge rejected two other arguments made by the plaintiffs but ruled that the word “appropriate” means “to set apart for or assign to a particular purpose or use in exclusion of all others” and therefore using part of that appropriate for ESAs violates the state Constitution.
The chink in that argument is that the State Distributive School Account (DSA) is funded on a per pupil basis and if that pupil is no longer in a public school is that funding still required to go to public schools?
As the judge points out the Legislature passed Senate Bill 515, just days after passing the ESA bill, and that set funding at just more than$5,700 per pupil in the DSA. The ESA bill dictated that most parents who pull their children from public school would be given 90 percent of that amount to fund education by whatever means they choose — private school, tutoring, homeschooling. Poorer parents would get 100 percent.
So, the per pupil funding for public schools is not diminished by the savings accounts.
But apparently the judge took the view that the DSA fund is a lump sum that may not be diminished. In passing, Judge Wilson noted that NRS387.1233 calls for a school district’s funding to be based on the prior year’s enrollment if the district experiences an enrollment decline of 5 percent or more.
But the judge also later states that the courts “may not condemn legislation simply because the object or purpose is new (no matter how astonishing or revolutionary) so long as a constitutional limitation is not violated. …”
Is the appropriation of public school funds on a per pupil basis or a district basis?
And just how are parents of public school children harmed if their schools get 10 percent of the funding for pupils who are not in their public school? Additionally, public school keeps the local and federal funding. Seems more like a benefit than an irreparable harm.
Attorney General Adam Laxalt, whose office defended the ESAs before Judge Wilson, released a statement: “Although a preliminary injunction was granted this afternoon, our Office is pleased that the court ruled in Nevada’s favor on two of the three claims asserted against the law — one of which has been made in the related Las Vegas case. We are reviewing the order with respect to the third claim and considering our legal options to ensure that Nevada’s parents receive the educational funds they are entitled to.”
The Las Vegas newspaper quoted state Treasurer Dan Schwartz, whose office is designated to handle ESAs and who is named as the defendant in the case, as saying more than 4,100 accounts have been set up.
“Thousands of students and their distressed parents may see their plans upended,” Schwartz said.
The because the law requires students to enrolled in public school for 1oo days in order to qualify for an ESA, some parents have pulled their children from private schools and enrolled them in public schools. No irreparable harm there?
This should end up before the state Supreme Court. The sooner the better.