After 90 minutes of legal arguments over the constitutionality of the school vouchers program, Carson City District Judge James Wilson on Wednesday took the case under submission.
Recognizing no matter how he rules, it would be appealed to the State Supreme Court, Wilson told the two parties, “We’ll get an order out as quickly as we can but it’s not going to happen today.”
A group of parents billing themselves as “Educate Nevada Now” filed suit in September to declare the Educational Savings Accounts program — school vouchers — unconstitutional. The state constitution, they argue, prohibits distributing public education money to private institutions. The constitution also bars the use of public money for religious purposes, which includes the majority of the private schools in question.
Treasurer Dan Schwartz is managing the program and plans to begin issuing checks in February to the more than 4,100 parents who have applied for vouchers worth some $5,100 a school year to help them pay tuition for their children at private schools. Opponents want Judge Wilson to issue a preliminary injunction blocking issuance of any checks until the constitutionality of the entire program is resolved.
Solicitor General Lawrence VanDyke argued the constitutional language “set the floor” for education funding in the state by mandating funding for public schools.
“Then the Legislature is clear to do other things,” he said — arguing that includes making money available for private school tuition.
But Tammy Godley, arguing for the injunction, said the Nevada Constitution is clear: “Public money is only to fund the operation of public schools, nothing else.”
But Senate Bill 302, the ESA program, she said, clearly violates that provision because “the money that was going to the public schools will go to private expenditures.”
“We have a situation where these funds are set aside only to be used for public schools and they are being diverted by the ESAs to private expenditures.”
She said the constitution requires the state use public money to fund a uniform system of common schools and can’t be used to fund private schools.
VanDyke, however, argued laws passed by the Legislature are presumed to be constitutional unless opponents can prove otherwise.
“They have to prove a negative, that there is no circumstance under which the legislation would be valid,” VanDyke said. “They haven’t shown it’s clearly unconstitutional.”
He raised the issue of his office’s motion to dismiss the case entirely but was told by Judge Wilson, “The motion to dismissed was denied.”
“Oh, bummer,” said a surprised VanDyke.
He said opponents claim issuing the checks would cause irreparable harm to the parents whose children are in public school by reducing available funding.
He said they don’t mention the harm to parents applying for the program.
“There are thousands of parents lined up, already applied, planning and expecting to get this money,” he said.
“That will be real harm as opposed to speculative harm.”
Godley responded the constitution was designed to protect public school funding by barring its use for any other purposes.
The injunction, she said, is needed because, “This February when the State Treasurer wants to start handing out money, $20 million is gone.”
The case is a companion to the similar constitutional challenge filed by the ACLU in Las Vegas. The motion to dismiss in that case is still pending before the court and, if denied like Wilson did in Carson City, would then have a hearing on a preliminary injunction mirroring Wednesday’s hearing in Carson City.