Editorial: High court should follow judge’s rationale for upholding ESA program

Mothers rally in favor of Nevada law creating education savings accounts. (Shannon Churchwell photo)

The Nevada Supreme Court could save itself a lot of time and effort by just cutting and pasting a Clark County judge’s 45-page ruling this past week on the constitutionality of the state’s education savings account (ESA) law.

Though Court Judge Eric Johnson’s decision dismissed an American Civil Liberties Union suit that claimed the law violates the state Constitution’s prohibition against funding sectarian institutions because parents could spend the savings at religious-based private schools, he also addressed the crux of another case that is pending before the Supreme Court.

In that case — Schwartz v. Lopez — plaintiffs argue that money set aside for public schools funding may not be used for any other purpose.

The Legislature in 2015 set statewide public education 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 public school enrollment and the needed funding.

Judge Johnson, writing on the religious separation argument, said, “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 …’”

The judge also 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 …”

According to Attorney General Adam Laxalt, whose office represents the state in seeking to have the ESA 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 of Johnson’s ruling. “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.”

Laxalt has informed the Supreme Court that the first quarterly ESA payment for the coming school year is scheduled for Aug. 1, but in order for the Treasurer to do all the necessary paperwork, he needs a favorable court ruling lifting the Schwartz v. Lopez injunction by July 8.

The Supreme Court needs to rule on these lawsuits as soon as possible so thousands of parents and children can be released from limbo and get on with their education.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Update: On Wednesday the Supreme Court issued an order denying the request for a expedited hearing and set the hearing date for July 8, meaning that ESA checks probably will not the ready for the fall semester. “On May 20, 2016, appellant filed an unopposed motion to expedite and set oral argument for June 6 or 7, 2016, and to render a decision by July 8, 2016. We deny the motion, however, we have scheduled oral argument for July 8, 2016, the earliest possible date this court can reasonably hear the merits of this case, and we will expedite a decision in this matter to the extent this court’s docket permits,” the order states.

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