Nevada AG Laxalt files motion to dismiss suit against Education Savings Accounts

The Attorney General’s Office has filed motions to dismiss the lawsuit challenging Nevada’s school vouchers law.

The suit by the American Civil Liberties Union on behalf of several taxpayers argues the so-called Education Savings Accounts are unconstitutional because the state constitution bars public funds from being used for religious purposes or organizations. Most of the private schools involved are religious-based.

Attorney General Adam Laxalt filed a motion Monday asking a judge to dismiss, “because (1) Plaintiff’s taxpayer status does not give them standing to challenge the ESA program and, (2) nothing in Article 11 of Nevada’s Constitution prevents the state from creating ESAs.”

The 103-page motion argues that the reforms included in Senate Bill 302 give parents “real choice in how to best educate their children.”

He also argues that the bill isn’t a vouchers program because the funds are not disbursed directly to a private school.

“Under Nevada’s ESA program, by contrast, the state disburses funds into students’ education savings accounts, from which, parents choose where and how those funds will be spent.”

The motion argues that the bill’s author Sen. Scott Hammond, R-Las Vegas, specifically looked at the constitutional issue and said the legislation fits within the constitutional provision.

The motion says that the Plaintiffs’ “objection to SB302’s ‘use’ of their taxes does not establish standing.” It argues only the Legislature can repeal the law.

The American Civil Liberties Union and Americans United for Separation of Church and State sued in August, arguing that the new law violates the so-called “Blaine Amendment” in the Nevada Constitution that bans using public funds for sectarian purposes. Other states have similar language in their constitutions, and the outcome of the Nevada fight could inform cases there.

“Parents have a right to send their children to religious schools, but they are not entitled to do so at taxpayers’ expense,” ACLU of Nevada Executive Director Tod Story said when the lawsuit was filed.

Story said Monday the ACLU had received the motion and was reviewing it, but said they were confident that the program was unconstitutional, regardless of the state’s arguments.

“We will continue to vigorously protect the rights of Nevadans guaranteed under the Nevada Constitution,” he said.

Laxalt’s motion dismisses the so-called Blaine Amendment to the Nevada Constitution that states that, “no public funds of any character whatever, state county or municipal, shall be used for sectarian purpose.”

“To the extent that ESA funds find their way to religious schools, they do so only through a series of private, individual decisions by the families and students who take part in the program,” it argues.

The Republican-controlled Nevada Legislature passed a bill this spring creating Education Savings Accounts, in spite of Democratic opposition.

The program has proven extremely popular with more than 3,600 parents applying for an ESA program.

A second, similar lawsuit has been filed by a group of Southern Nevada parents raising very similar arguments.

Gov. Brian Sandoval issued a statement said both suits should be consolidated to resolve the issue as quickly as possible and without incurring added expense. Sandoval has made it clear he strongly supports the new law.

“Whether you support the law or not, it is in the best interest of students, educators, parents and schools to have a clear and expedient interpretation that settles these challenges,” he said.

The program, which is considered the broadest school choice program in the country because it’s not limited by factors such as family income, allows parents to claim most of their child’s per-pupil state education funding and use it toward private school tuition or other qualified education expenses.

The Nevada Attorney General’s Office has partnered with former U.S. Solicitor General Paul Clement and his law firm, Bancroft, to fight the battle.

Clement has argued more cases before the U.S. Supreme Court since 2000 than any other lawyer. He represented states challenging Obamacare and represented Hobby Lobby in its bid to not pay for insurance covering certain contraceptives.

The attorney general’s office says the state needs Clement because the eyes of the nation are on the program.

The Associated Press contributed to this report.


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