In January District Judge James Wilson of Carson City issued an injunction blocking enactment of the Education Savings Accounts approved by lawmakers in Senate Bill 302, saying it violated Article 11, Section 6.2 of the state Constitution.
On Friday, Attorney General Adam Laxalt filed a 62-page brief arguing to the state Supreme Court that the injunction should be lifted and the law enacted as written. The argument in the brief is similar to ones made here in mid-January.
In a press release Monday, Laxalt said, “This injunction has disrupted more than 4,000 Nevada families who hoped to benefit from this innovative program. While I believe the harm cited by the plaintiffs is pure conjecture at best, my Office continues to work diligently to get a final answer on the constitutionality of ESAs as quickly and efficiently as possible.”
This is the gist of the AG’s argument:
Section 6 imposes three clear and specific duties on the Legislature concerning the funding of the public schools — and the Legislature clearly satisfied all three and SB 302 violates none. First, Section 6.1 requires the Legislature to provide for the “support and maintenance [of the public schools] by direct legislative appropriation from the general fund.” Nev. Const. art. 11, § 6.1. No one doubts that the Legislature has done that. For the current biennium, it passed Senate Bill 515 (“SB 515”), which established the per-pupil basic support guarantees for the school districts and transferred $2 billion in general funds to the DSA to cover both the State’s obligations to the school districts and the ESA program.
Next, Section 6.2, enacted in 2006 after the public-school funding impasse of 2003, imposes two other requirements on the Legislature: “[B]efore 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” for the public schools. Nev. Const. art. 11, § 6.2. Section 6.2 thus requires the Legislature to (1) pass an appropriations bill funding the public schools before it passes any other appropriations bill and (2) provide the funds that it “deems to be sufficient” for the public schools. Id. As to the former, there is no dispute that SB 515, the bill that appropriated $2 billion to the DSA, was the first appropriations bill for the current biennium, and that the very first section of SB 515 set aside “guarantee[d]” funding for Nevada’s public schools. And while the latter is plainly not a justiciable duty, the Legislature expressly declared the amount that it set aside in SB 515 as “sufficient” funding for the public schools. Indeed, the very title of SB 515 is “An Act … ensuring sufficient funding for K-12 public education for the 2015-2017 biennium ….”
The brief makes it clear the lawmakers deemed sufficient a per pupil funding level of $5,700 on average across the state and the same lawmakers said parents could tap a savings account amounting to 90 percent of that per pupil amount from the same state appropriation for the purpose of educating the public’s children somewhere other than a public school.
The district judge ruled that the $2 billion Distributive School Account was inviolate and could not the tapped for any purpose other than funding public schools, even though the funding was based on a per pupil basis as are the ESAs.
The attorney general’s brief pointed out repeatedly that the state Constitution merely requires public schools to be funded at a level the “Legislature deems to be sufficient,” and the law funding public schools was passed three days after the ESA law; therefore, lawmakers deemed that amount 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 like a benefit more than an irreparable harm to the parents of public school children.
On Monday the Las Vegas newspaper posted online a story about the filing that quotes an attorney representing parents who challenged the ESA law. Attorney Tamerlin Godley was quoted as saying the Constitution creates a “lock box” on public schools funds and the money must be used solely at public schools. That is basically what the district judge ruled, though no one cites where that “lock box” language resides in the Constitution.
“If SB 302 is implemented, it will have an impact on children that cannot be reversed,” Godley was quoted as saying. “We have a situation where the state would pay out millions of dollars in money earmarked for public education that it could not claw back, or we stick with the status quo.” The story did not appear in today’s print edition.
The case is being expedited by the Supreme Court and could be heard and/or decided by the justices as early as mid-April.
There is another legal challenge to ESAs pending in Las Vegas courts.