Education savings account law is overturned by state Supreme Court, proponents say lawmakers can fix it

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.”  

Nevada Supreme Court building

Nevada Supreme Court building

20 comments on “Education savings account law is overturned by state Supreme Court, proponents say lawmakers can fix it

  1. Bruce Feher says:

    These black roped thugs have doomed thousands of children to the worst educational system in the country! Trust me, this is not over!

  2. Anonymous says:

    Hey what do you, judges who actually follow the Constitution. Refreshing.

  3. Steve says:

    That’s how these things are supposed to work If it was Obama he’d just issue an executive order forcing the issue to go the way he wanted it to go.
    The ball is in the Governor’s hands. Add that issue to the special session on Sheldon’s stadium!

  4. Anonymous says:

    Never mind, they ultimately did the right thing, but there are so many mistakes they made, errors in interpreting the a Constitution, they deserve very little credit.

    At least for today, the wealthiest people in the state, will have to find another way to screw the rest of Nevada and in the meantime, pay your own tuition fees when you send your kids to private school.

  5. Judging from the words of he who must not be named…it must have been a better day in court for the ESA’s than the headline implies. A little tinkering with the funding mechanism and the Democrats failed education system and the unions responsible for it, will be shaking in their boots…they don’t take kindly to competition exposing how incompetent they are. And all the squealing about the rich notwithstanding…it’s a red letter day for students and their families at all levels of the economic strata.

  6. Steve says:

    Deleted/Anon is in a quandary.

    This ruling is a win for ESA’s in Nevada. All that remains is for the Special session to fix the funding issue and all is good!

    If it doesn’t get fixed before November and the balance of power in the Nevada Legislature shifts left, there is no predicting what will happen.

    So, Gov Sandoval, do the right thing. Add this issue to the special session!

  7. Anonymous says:


    The Supreme Court seems to have laid out a path, but it won’t be easy for the legislature to get there.

    And I guess you can ignore the fact that ONLY the wealthiest Nevadans are, and will take advantage of this scheme to dumb down the state even further, since you’ve probably already got the benefit of having a publicly funded education, and seem more inclined to supplicate yourself to the rich than to ensure the rest of the kids in this state get a chance for an education.

    Seems rather ignorant and ungrateful, not to mentioned shortsighted but, who cares right?

  8. Steve says:

    Just heard the Governor won’t add this issue to the special session.
    He has something in mind he’s not letting on in public.

    I’m thinking legislative Democrats are currently looking for things they can get out of a deal to allow ESA’s, since they now know them to be fully constitutional.

  9. Sorry, he who is not to be named…you simply don’t know what the flip you’re talking about. I know…because I am a middle class working stiff whose family made numerous sacrifices to send my daughter to a private school for grades K – 10. Her last two years were spent at a public high school…where she was two grades ahead of the kind of work she was being assigned and breezed through with straight A’s and honors citizenship. She received a United States Presidential Scholars Award and a full ride scholarship. She is now in Oregon finishing up her Masters Degree, and then she will begin work on her Doctorate. I could have really used and would have been mighty grateful for an ESA type program to help with the heavy lifting during those tough early years.

  10. Anonymous says:


    Congratulations to you and your daughter. I’m sure your justifiably proud.

    No question that there will be a very small percentage of kids, from middle class families, that will have some of their kids private school tuitions paid for by this program. There will be significantly fewer kids from lower income families, who might also have some of their private school tuitions paid for. However, as I said, the majority of the kids whose tuitions will be drained from the state though, are going to be the wealthiest kids and their families.

    All the while, while the above happens, the VAST majority of lower income kids, and a large percentage of middle class kids (if there is such a thing left in the future) are going to be headed to public schools, with even fewer resources; guess what their fate will be?

    And since your part of the middle class, it’s hard to understand how you could support kids from that dwindling group, being subjected to this.

    Like I said, I guess you just don’t care.

  11. Steve says:

    Made up position, argued, then condemned.

    Judge, Jury and executioner all wrapped up in one anonymous ass.

    What about letting the program go forward and fixing things found inadequate later….Ala Obamacares!

  12. Anonymous says:

    Steve, you are a fuking idiot.

  13. Steve says:

    Again, Patrick (par for the course) got nothin.

    except “fukin”…that’s a great word, it’s the best word, it always makes a bigly impression.

  14. Again…the suppositions of he who must not be named are made up out of whole cloth. Number one…as I stated above, students and families from ALL of the economic strata will avail themselves of the ESA’s. To say that only the upper crust of society will benefit from this is hogwash…and a progressive leftist Democrat mantra with no evidence to support it. Second…when the students and families who avail themselves of the ESA’s leave the public school system…they leave behind a significant portion of the state allotted money and an empty desk. That’s right…the classrooms will be smaller and those still there will have more of the state money spent on them. So you see, it’s a win-win situation…that is unless you are a part of the unionized incompetence brigade. And also it is actually I, and everyone else who supports the ESA’s…that REALLY care for the students of our state.

  15. […] that the state Supreme Court has ruled that education savings accounts are constitutional, but lawmakers erred in how they funded them, handing them a mulligan, everything is on course to […]

  16. Anonymous says:


    Just the facts; the vast majority of those taking advantage of the program designed to subvert public education in this state, are, and will be in the future, the wealthiest citizens.

    “A vast majority of applicants – 80 percent – live in neighborhoods where median household incomes outpace the state median of $51,000, according to the Reno Gazette-Journal’s analysis of information released about the 3,000 students seeking public money for private school.”

    This result is consistent with that experienced in other states where conservative lawmakers have done all they can to destroy public education.

    “Two years after state lawmakers granted children from poor-performing schools the right to attend private schools at taxpayer expense, most children using the program are leaving high-performing public schools in wealthy districts, an analysis by The Arizona Republic has found.”

    There are other examples, in states where conservatives have done the same thing, and again, it’s hard to understand someone like yourself, who claims to be part of the middle class, who would support this program intended to destroy public education for those middle class kids unless you just don’t care.

  17. Barbara says:

    This program is not intended to destroy public education – liberals are – no have accomplished that all on their own. This program is designed to provide choice to parents who want their kids to receive a quality education. It is only a start and can be improved upon and will when competition exists.

  18. Anonymous says:

    Nonsense Barbara.

    The goal is most definitely to destroy public education.

    Where do you suppose the idea Scott “the puppet” Hammond foisted on the legislature came from? His whole bill was very likely drafted by the schemers at The Friedman Institute in conjunction with ALEC, a Koch Brothers funded organization.

    Just say you’re happy about, admit you don’t care about the poor kids or middle class kids educations, and you don’t worry or care about the impact it will have on society, and I’ll at least be able to give you credit for the integrity most others here haven’t shown.

  19. Steve says:

    ” Scott “the puppet” Hammond ”

    Notice, Patrick resorts to name calling every time he’s been solidly beaten down.

    We accept his surrender and expect more name calling.

  20. Anonymous says:


    A clear expression of the intention of “conservatives” about what they want to happen with publicly funded education:

    “”How do we get from where we are to where we want to be?” Friedman asked the ALEC crowd.

    “Of course, the ideal way would be to abolish the public school system and eliminate all the taxes that pay for it. Then parents would have enough money to pay for private schools, but you’re not gonna do that.”

    Instead, Friedman said, the politically feasible way of moving towards an entirely private educational system is through vouchers:

    So you have to ask, what are politically feasible ways of solving the problem. The answer, in my opinion, is choice, that you have to change the way government money is directed. Instead of it being used to finance schools and buildings, you should decide how much money you are willing to spend on each child and give that money, provide that money in the form of a voucher to the parents of the children so the parents can choose a school that they regard as best for their child.”

    So you can see that, in Friedman’s own words, while it’s NOT politically feasible to just come right out and say “we don’t want to pay for YOUR kids to be educated” instead, what we will do, is frame the issue as “choice” so as to lull the suckers into a slumber while we destroy the entire system by which generations of Americans, rich and poor, have been well educated.

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