On Wednesday Clark County District Court Judge Eric Johnson released a 45-page ruling dismissing a constitutional challenge to the state’s education savings account (ESA) law by the American Civil Liberties Union.
The ACLU challenged the law on the grounds it violated the state Constitution’s prohibition against funding religious institutions, because parents taking advantage of the state-established savings accounts could spend the money at religion-backed private schools.
A separate challenge to the law — Schwartz v. Lopez — is still pending before the state Supreme Court. Plaintiffs in that case argue that money set aside for public schools funding may not be used for any other purpose.
The Legislature set statewide per pupil funding at $5,710 per pupil in the Distributive School Account (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 — thus reducing the population and the needed funding.
Judge Johnson writes, “The United States Supreme Court’s ‘decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools, and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.’ … Where a school aid program, such as the ESA program, is neutral with respect to religion, and provides assistance available directly to a wide spectrum of citizens, or as in this case, essentially all parents of Nevada school children, who, in turn, direct the financial assistance to religion affiliated schools ‘wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge …'”
According to Attorney General Adam Laxalt, whose office represented the state in seeking to have the law upheld, 6,000 students have applied under the ESA program, which is on hold pending the outcome of legal challenges.
“This is a huge and important step in getting certainty for the thousands of families waiting to participate in Nevada’s ESA program,” said Laxalt. “The Court correctly dismissed these speculative and tenuous claims. The decision today clears the way for the Nevada Supreme Court to meaningfully address the remaining uncertainty caused by the injunction in the other case challenging Nevada’s ESA program. We are one giant step closer to helping thousands of Nevada families choose the best educational option for their children.”
The ACLU is considering whether to appeal, according to the Las Vegas newspaper.
The judge’s ruling repeatedly emphasized that the state Constitution instructs lawmakers to encourage education by “all suitable means,” which is in addition to the requirement to “provide for a uniform system of common schools.”
Johnson also noted that the plaintiffs alleged that certain schools might illegally discriminate in admissions and hiring. If that is the case, he stated litigation could be brought when that happens. “Whether illegal discrimination occurs and a school may participate under the program can be dealt with in the specific context of the facts of an actual controversy rather than in the hypothetical,” he wrote twice in the ruling.
Gov. Brian Sandoval released a statement saying, “Today’s decision by Judge Johnson is a victory for thousands of Nevada families who are pursuing the opportunity to choose the best education path for their children. School choice was an important part of the legislative education reform package enacted in 2015. I hope that all pending litigation challenging these critical reforms will soon be resolved for the sake of our students who deserve every opportunity to succeed.”
Judge Johnson addressed and dismissed many of the financing issues raised in the Schwartz v. Lopez case pending before the Supreme Court, writing that “even if large numbers of parents enroll in the program, so long as there is a ‘uniform public school system,’ open to the ‘general attendance’ of all, the Legislature has fulfilled the duty imposed …”