This morning the Nevada Supreme Court ordered the district courts to permanently enjoin enforcement of the education savings account law passed in 2015 as unconstitutional because it violates Article 11, Sections 2 and 6 of the state Constitution. (esa-opinion) But proponents say the flaws identified by the court can be easily fixed.
Section 2. Uniform system of common schools.
The legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year, and any school district which shall allow instruction of a sectarian character therein may be deprived of its proportion of the interest of the public school fund during such neglect or infraction, and the legislature may pass such laws as will tend to secure a general attendance of the children in each school district upon said public schools.
Section 6. Support of university and common schools by direct legislative appropriation; priority of appropriations.
1. In addition to other means provided for the support and maintenance of said university and common schools, the legislature shall provide for their support and maintenance by direct legislative appropriation from the general fund, upon the presentation of budgets in the manner required by law.
2. During a regular session of the Legislature, before 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, when combined with the local money reasonably available for this purpose, to fund the operation of the public schools in the State for kindergarten through grade 12 for the next ensuing biennium for the population reasonably estimated for that biennium.
Justice James Hardesty wrote, “Having determined that SB 515 (the appropriations bill) did not appropriate any funds for the education savings accounts, the use of any money appropriated in SB 515 for K-12 public education to instead fund the education sayings accounts contravenes the requirements in Article 11, Section 2 and Section 6 and must be permanently enjoined. See 2015 Nev. Stat. ch. 332 … to reqire that all funds deposited in the education savings accounts be subtracted from the school districts’ quarterly apportionments of the DSA (distributive school account). Additionally, because SB 302 (the ESA law) does not provide an independent basis to appropriate money from the State General Fund and no other appropriation appears to exist, the education savings account program is without an appropriation to support its operation.”
But Attorney General Adam Laxalt, who defended the law in court, issued a statement saying the flaws in funding addressed by the court can be easily fixed by the Legislature.
He issued this statement:
“Today’s rulings on Nevada’s Education Savings Account program are a landmark win for the families and children of Nevada. The Supreme Court agreed that the main constitutional hurdles to educational choice cited by opponents are without legal merit. Namely, the Court agreed with our common-sense arguments that ESAs were enacted for an educational purpose, not a religious one, and that the Legislature, in addition to its longstanding support of our public school system, can support educational opportunities outside of that system.
“After today’s ruling, there is only one step left to take in order to make the vision of educational choice a reality for thousands of Nevada families. The Court ruled against the State on a small funding issue that was not even debated or contentious when this bill was passed. Fortunately, the Supreme Court has made crystal clear that ESAs are constitutional and that the Legislature can fix this funding technicality and allow for the implementation of ESAs statewide. I am proud of my legal team and the Nevada courts for bringing this much-needed clarity to our State in record time, where the ultimate goal is to create a personal approach to education by maximizing each child’s natural learning abilities.”
Tim Keller, an Institute for Justice attorney who defended the ESA program before the court, said, “The Nevada Supreme Court has unequivocally said that there is no constitutional impediment to fully funding Nevada’s ESA program, but unfortunately the Court said that the funding mechanism in the current program cannot be used. The ball is now in the Governor’s and Legislature’s court to adequately fund the ESA program for thousands of families who have already applied to participate in it.”
The IJ noted that the court said, “It is undisputed that the ESA program has a secular purpose — that of education — and that the public funds which the State Treasurer deposits into the education savings accounts are intended to be used for educational, or non-sectarian, purposes. Thus, in depositing public funds into an education savings account, the State is not using the funds for a ‘sectarian purpose.’”
“Today’s decision is disappointing for our clients and the families in Nevada who need educational alternatives right now,” declared IJ Attorney Keith Diggs. “However, the silver lining is that the problem identified by the Court is a technical problem that the Legislature can, and should, fix as soon as possible.”