Judge Rejects Challenge of Nevada School Vouchers

     LAS VEGAS (CN) — Nevada’s broad school-choice program survived one of two legal attacks this week when a judge ruled that it does not violate the Nevada Constitution’s ban on using public funds for religious purposes or the Legislature’s duty to provide a uniform public school system.
     In a 45-page decision, Clark County District Judge Eric Johnson rejected both constitutional challenges to the state’s new Education Savings Account (ESA) program, which allows parents to use state funds for their children’s tuition and other educational expenses at private schools, primarily religious schools. The money is drawn from the state’s Distributive School Account, and children can receive as much as 100 percent of the average support the state pays per pupil in public schools.
     The ACLU of Nevada and Americans United for Separation of Church and State, representing five parents, raised the constitutional challenge in a suit filed against the state of Nevada. Another set of parents intervened in support of the school-choice program, and a number of friend-of-the court briefs supporting both sides of the issue were filed.
     The program faces another legal hurdle in a separate suit raising different constitutional issues involving the use of state funds. In that case, a Carson City judge granted a preliminary injunction halting the program, and the state appealed his ruling to the Nevada Supreme Court.
     In a written statement, Nevada Attorney General Adam Laxalt called this week’s dismissal a “huge and important step in getting certainty for the thousands of families waiting to participate in Nevada’s ESA program.” The court, he said, “correctly dismissed these speculative and tenuous claims.”
     Amy Rose, the ACLU of Nevada’s legal director, said a decision on appealing the ruling hasn’t been made.
     “We think the judge failed to recognize the strong prohibitions in the Nevada Constitution which protect Nevada taxpayers from an unconstitutional use of their money towards the buildup of religion,” Rose said in an interview. “And that’s exactly what this voucher program does.”
     Johnson’s ruling focused on the two narrow issues of Nevada constitutional law and came in response to the state’s motion to dismiss.
     Opponents claimed that the constitution restricts the Legislature — in encouraging education — to only providing a uniform public school system and no other means.
     One section of the constitution says the Legislature shall encourage education by “all suitable means,” without a specific reference to any other section. A separate section directs the Legislature to provide a uniform public school system.
     Johnson ruled that the two sections are separate and distinct and to read them otherwise would make the section on “all suitable means” superfluous.
     “The Legislature’s broad authority under section 1 is not inconsistent with its baseline obligation to provide a uniform public school system in section 2,” the judge wrote. “The Legislature can provide for a uniform system of common schools, free from religious instruction and open to general attendance by all Nevada children, and still adopt other suitable means to encourage education.”
     He then dismissed the opponents’ claim that the program violates the constitutional ban on using public funds for sectarian or religious purposes.
     The funds deposited by the state into an Education Savings Account (ESA) are “reserved for educational purposes, and not for any sectarian purpose,” Johnson wrote. “The state has no influence or control over how any parent makes his or her genuine and independent choice to spend his or her ESA funds.
     “Consequently, the state cannot be deemed to be using the funds for a sectarian purpose as the parents, and not the state, direct through their own independent decision the funds to religious education schools.”
     Johnson also rejected opponents’ contentions that the school-choice program theoretically could divert all state funding to private schools and that those schools may violate discrimination laws. He said opponents don’t have standing to assert potential injuries.
     “This court has no reason to believe and plaintiffs have not proffered any factual allegations to suggest all parents of Nevada school children will enroll in the ESA program,” he wrote.
     The discrimination matter “can be dealt with in the specific context of the facts of an actual controversy rather than in the hypothetical,” he wrote.

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