Education savings account cases will be heard by state high court in a month — finally

There is a reason the courts routinely expedite cases involving children. If the cases were handled in the usual mañana fashion the children have children of their own by the time the case is resolved.

The state Supreme Court has rightly refused an effort by the ACLU to further delay the hearing of its suit to block enactment of the education savings account (ESA) law passed by the 2015 Legislature, which would allow parents to keep a portion of their taxes — about $5,100 a year in most cases — in a savings account to pay for private schooling or homeschooling.

The court has scheduled hearings for the morning of July 29 for both the ACLU case — Duncan v. State, which challenges the law as a violation of a constitutional prohibition against using state funds for sectarian purposes — and another case — Schwartz v. Lopez, which claims the law impermissibly diverts funds from the Distributive School Account (DSA).

The ESA is under the auspices of state Treasurer Dan Schwartz, who had hoped to make funding available by January 2016, but now the suits make it impossible for funding to start by the beginning of the new school year in the fall. Another delaying wrinkle is that the law requires eligible students to have been enrolled in public school for 100 consecutive days prior to receiving the funds.

The Schwartz v. Lopez case will be heard at 10 a.m. on July 29. In that case a Carson City judge blocked the state from carrying out the provisions of the law, saying it is unconstitutional under that Article 11, Section 6.2 of the state Constitution. He 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.

Attorney General Adam Laxalt, representing the state, has countered 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 case of Duncan v. State will be heard at 11:30 a.m., after Schwartz. This case 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.

“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 AG has argued. “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 sooner this is resolved, the sooner parents and children can exercise choice in education.

3 comments on “Education savings account cases will be heard by state high court in a month — finally

  1. It’s about time…too many families have been held hostage by the ACLU and it’s agenda.

  2. Bruce Feher says:

    I’ve been told that anyone can sue anyone about anything! If the ACLU prevails with the case against the ESAs I will be sure to look into suing them and the people they represent in the matter!!

  3. Rincon says:

    I think you’re right that people can sue for anything. The families of the Aurora, CO shooting victims tried to sue the theater for not having security guards and a camera system. Luckily, they lost. The theater can now countersue for the $700,000 (!) in legal bills that were generated. When pigs fly.

    If you have a hammer, everything looks like a nail. If you’re a judge, there is no such thing as a frivolous lawsuit.

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