The state attorney general’s office filed a brief Friday outlining point-by-point its arguments against a court challenge to Nevada’s education savings accounts (ESAs) law enacted by the 2015 Legislature.
The suit — Schwartz v. Lopez — claims Senate Bill 302 violates the state Constitution by impermissibly diverting funds from the Distributive School Account (DSA).
A Carson City judge has blocked the state from carrying out the provisions of the law, which would allow parents to set up education savings accounts funded by 90 percent of the money that otherwise would have been gone to public schools, about $5,100 a year.
Attorney General Adam Laxalt’s 49-page brief points out that the DSA is not, as the plaintiffs allege, a lock box from which no funds may be diverted, but rather funds public schools on a per pupil basis. If a student moves out of a district or transfers to a private school or homeschooling, the per pupil funding is affected in the same manner.
The brief notes repeatedly that the Constitution requires the Legislature merely to fund public schools at an amount the Legislature “deems to be sufficient” and that the Legislature is to encourage education “by all suitable means,” which does not limit it to public schools only.
The brief notes:
Nevada is struggling through a grave educational crisis, ranking 50th out of the 50 States. ESAs are the centerpiece of the Legislature’s ambitious response. Plaintiffs dislike the Legislature’s choice because they dislike school choice. But this was a democratic enactment and a popular one at that. Thousands of families eagerly await the opportunity to use the ESA program: to send a child to a school whose curriculum better serves the student; to keep siblings together; to get a class size that does not aggravate a physical disorder. Serving these interests was a valid policy choice. Respondents’ amici, who disagree with the law, have made that clear by filing a series of policy papers. A coalition of public school boards urges this Court to “prevent” Nevada’s law from “becoming part of a national crusade” to enact similar reforms.
The AG’s brief also takes apart the arguments on the intent of the drafters of the Constitution by quoting one of those drafters who said that “while we are legislating on [education], do not let us forget that we are living in a Republic, that a man’s house is his castle, and that in it he has a perfect right to exercise full authority and control over his children — to send them to school, or to keep them at home, just as he pleases.”
Another challenge to the ESAs law raises the question of whether ESAs violate the Constitution’s prohibition against sectarian funding by noting that ESAs could be used to send children to religion-based schools, and the brief mentions this other case, apparently in hopes the court might dispose of both arguments in one opinion.
“If ESA funds arrive at religiously affiliated schools, they get there only through private, individual decisions by the families who take part in the program — not through government direction,” the brief states. “As the U.S. Supreme Court recognizes, these independent parental decisions break the link between government funding and the school a child ultimately attends.”
The brief concludes it is not the parents suing to block ESAs who are being harmed, because no funds are being diverted from public school per pupil funding, but rather the state is being harmed. It notes that 40 percent of the state’s fourth graders are illiterate.
“There is a profound public interest in helping to remedy the State’s education problems by empowering parents, especially low-income families, to pursue the educational options that best suit their children’s needs,” Laxalt’s brief concludes.
“The State, as well as the public interest, is harmed by the issuance of the preliminary injunction. Nevada itself ‘suffers irreparable injury whenever an enactment of its people or [it] representatives is enjoined.’ … Respondents’ interest in ‘preserv[ing] the status quo in Nevada,’ is outweighed by the State and public interest in doing more for our children and their futures than simply what has always been done before.”