ACLU Continues Challenge of Nevada School Choice Program


Next month, a Las Vegas judge will decide whether to dismiss a lawsuit challenging the constitutionality of Nevada’s controversial education savings account (ESAs) school choice program.

Neal Morton, writing for the Las Vegas Review-Journal, says that State Attorney General Adam Laxalt argued in Clark County District Court that the ESAs are not in violation of a ban against the use of public funds for religious purposes. Some parents do, however, intend to use the program to pay tuition to parochial schools.

After a Republican-majority Nevada Legislature passed the bill in the spring in spite of Democratic opposition, Gov. Brian Sandoval (R) signed Senate Bill 302 into law in June. This allowed the state to move about $5,000 in per-pupil funding into an ESA if a parent takes his or her child out of the public school system. The ESAs can be used to pay tuition at a private school or for homeschooling, tutoring, or other approved educational services.

The ACLU of Nevada sued to prohibit the program in August and said the state cannot allow taxpayer monies to be given to a religiously-affiliated school. Laxalt, along with US Solicitor General Paul D. Clement, in a motion to dismiss the ACLU lawsuit, said that the law does not mention religious schools, parochial schools, prayer, or faith.

“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,” Laxalt wrote. “The law contains no requirement that ESA funds be used for sectarian schools. And it does not require recipient schools to promote any religious tenets.”

By the end of last week, the state treasurer’s office had received over 3,500 applications for early enrollment to the ESA program, which does not even go into effect until next school year.

According to Michelle Rindels of The Associated Press, the law requires that a student be enrolled in a Nevada public school for 100 days before being qualified for the program. Some parents are moving their children from a private school to a public school in order to be eligible for the program next year.

“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, so that we can move forward as one Nevada where all students have the opportunity to grow and succeed,” said Sandoval’s spokeswoman, Mari St. Martin.

Clements may have a leg up when it comes to court battles since he has argued more cases in front of the Supreme Court since 2000 than any other attorney. He represented states that challenged Obamacare as well as representing Hobby Lobby in its case concerning paying for insurance that covered certain contraceptives.

The state’s motion to dismiss reads that the ESA is the same as a state government employee using their paycheck to pay for their child’s tuition to a religious school, writes Trevon Millard of the Reno Gazette-Journal.

Laxalt argues that the bill is not a voucher program because the funds are not paid directly to a private school. Instead, funds are placed in a student’s ESA and parents are free to decide where and how those funds are spent.

The motion to dismiss also states that Sen. Scott Hammond (R-Las Vegas) assured his fellow lawmakers that the legislation fit within the constitutional provision, writes the Nevada Appeal’s Geoff Dornan.

The ESA program is considered to be the broadest school choice program in the country because factors such as family income do not limit parents and allows them to use most of their children’s per-pupil state education funding for private school or other education expenses.