There is a key phrase that is being largely ignored in the debate over whether the legislatively approved education savings accounts (ESAs) are constitutional.
That phrase is: “for the student population reasonably estimated for that biennium.”
When Nevada voters approved the amendment to the state Constitution dubbed Education First, this is how the initiative was described:
Education first ensures our state’s public school system will be funded, before any other program for the next fiscal biennium, during each legislative session, by an appropriation the Legislature deems to be sufficient to fund the operation of our public schools for the student population reasonably estimated for that biennium.
Under Senate Bill 302, most parents who pull their children from public schools would be given 90 percent of the per pupil funding approved by the Legislature for that biennium. They could use it to educate their children by whatever means they choose — private school, tutoring, homeschooling.
This bill establishes a program by which a child enrolled in a private school may receive a grant of money in an amount equal to 90 percent, or, if the child is a pupil with a disability or has a household income that is less than 185 percent of the federally designated level signifying poverty, 100 percent, of the statewide average basic support per pupil.
The school funding bill, Senate Bill 515, states: “The basic support guarantee for school districts for operating purposes for Fiscal Year 2015-2016 is an estimated weighted average of $5,710 per pupil.”
District Judge James Wilson of Carson City in his injunction blocking enactment of the ESAs as unconstitutional declared that Article 11, Section 6.2 determined that “appropriation” means “to set apart for or assign to a particular purpose or use in exclusion of all others” and therefore using part of that appropriation for ESAs violates the state Constitution.
In its entirety 6.2 states:
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.
So, if the population is reduced for each pupil pulled out of public schools, is that money still “appropriated”? Or is it then available for some other purposes, because the Legislature deemed the per pupil funding to be sufficient?
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 population? Additionally, public school districts keep local and federal funding. Seems more like a benefit than an irreparable harm to the parents of public school children.
Actually, for some counties there might be a huge windfall, depending on interpretation of the law, because the DSA differs for every county. For example, Esmeralda is guaranteed $24,331 per pupil; Lincoln, $10,534; White Pine, $7,799; Eureka, $9,633; Mineral, $8,980; Clark $5,512; but Lander gets only $4,374 — with some adjustments for local property tax collections. Since the ESA payout is based on 90 percent of the statewide average per pupil of $5,710, does each county keep the difference?
Attorney General Adam Laxalt has asked the state Supreme Court for an expedited ruling.