Supreme Court bars voucher program — for now

The Nevada Supreme Court on Thursday barred the school vouchers program created by the 2015 Legislature from moving forward because the state constitution prohibits using money appropriated for K-12 public education to fund it.

But the court, in a sense, split the baby, simultaneously ruling the Educational Savings Accounts aren’t specifically unconstitutional and funding placed in those accounts is no longer public but belongs to the parents.

Attorney General Adam Laxalt seized on that second part of the 35 page opinion saying the court “has made crystal clear that ESAs are constitutional and that the Legislature can fix this funding technically and allow for the implementation of ESAs statewide.”

Educate Nevada Now, which opposed the voucher program, also declared victory, pointing to the court’s injunction barring the use of K-12 appropriations from paying for the ESAs.

The opinion authored by Justice Jim Hardesty said because “nothing in the legislative measure creating the state Distributive School Account provides an appropriation for education savings accounts, we must conclude that the use of money that the Legislature appropriated for K-12 public education to instead fund education savings accounts undermines the constitutional mandates under Sections 2 and 6 to fund public education.”

The opinion orders the district courts in both of the ESA cases to issue a final judgment and permanent injunction barring the use of any K-12 public education money to fund the ESAs.

The ESA accounts were created in SB302, which passed the 2015 session just two days before the end of the session allowing parents to claim more than $5,000 in K-12 money per child. That money would be put into an ESA and used to pay private school tuition for their child. More than 4,000 families have signed up for the program to use the money for private schools and university programs, tutors and for tuition to enroll in religious schools.

The K-12 education bill passed three days later on the final day of the 2015 session but made no mention of the ESA accounts.

Two lawsuits were filed seeking to block the program.

One charged the law is unconstitutional because Article 11 of Nevada’s Constitution prohibits use of public money for religious purposes because it mandates a uniform system of common schools.

The opinion rejects the argument the framers intended a uniform public school system to be the only way for the Legislature to encourage education in Nevada.

“We conclude that, as long as the Legislature maintains a uniform public school system, open and available to all students, the constitutional mandate of section 2 is satisfied and the Legislature may encourage other suitable educational measures,” the Supreme Court wrote.

The opinion says opponents failed to establish creation of an ESA program violates the constitution.

The court also rejected the claim the ESA program violates the constitutional prohibition against using public money at religious schools.

The provision states: “No public funds of any kind or character whatever, state, county or municipal, shall be used for sectarian purpose.”

But the opinion says depositing public money in an ESA isn’t using the funds for a sectarian, religious, purpose because once those funds are deposited in an ESA, they become private money controlled by the individual parent.

The other lawsuit argues the constitution prohibits use of money appropriated to fund K-12 education for non-public purposes.

There, the opinion agrees with opponents. It states because SB302 didn’t contain an appropriation, it clearly takes the necessary money to pay for the ESAs from the K-12 budget, which violates the constitution.

The opinion was signed by Hardesty and fellow justices Ron Parraguirre, Mark Gibbons and Kris Pickering.

Justices Michael Douglas and Michael Cherry agreed with the majority the bill is unconstitutional, But they argued that because of that decision, the question of whether the money in the ESAs is public or private doesn’t need to be decided at this point. That issue, they said, should be sent back to district court to decide.


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