CARSON CITY, Nev. (CN) – The Nevada Supreme Court on Thursday gave a failing grade to the funding mechanism for the state’s sweeping school-choice law, effectively halting the program that allows state money to be used for tuition at private schools.
The court ruled that the funding method – using money appropriated by the Legislature for public schools – violates the Nevada Constitution and must be permanently scrapped.
That leaves the program without any funding source.
The Nevada Legislature last year approved Senate Bill 302, which created the program. The Legislature intended to fund the program through the public schools account, which distributes money to school districts on a per-pupil basis for grades kindergarten through 12th.
It allows parents to take their children out of public schools and use an average of $5,100 a year in state money through so-called education savings accounts to pay tuition at religious and other private schools. The money also can be used for home schooling, tutoring and other educational expenses.
The program, described as one of the broadest in the nation, applies to any student who has been enrolled in public school for at least 100 days.
Program proponents argued that the Legislature determined the $2 billion appropriation for public schools was sufficient to fund both schools and the education savings accounts.
“This argument fails, however, because SB 515 does not mention, let alone appropriate, any funds for the education savings accounts,” the court said in a 33-page opinion written by Justice James Hardesty. Chief Justice Ron Parraguirre and Justices Mark Gibbons and Kristina Pickering concurred.
“The text of SB 515 does not address the ESA program or appropriate any money to fund it,” the opinion said. “The legislative history of SB 515 contains no discussion of the education savings accounts or their fiscal impact on the amount appropriated for public schools. “
Hardesty’s opinion also noted that the school-choice bill was signed into law after the Legislature passed the school appropriations measure.
During oral arguments before the court in July, former U.S. Solicitor General Paul Clement, hired by the state to defend the school-choice law, said legislators used a practical approach by using the same account to fund those who stay in public schools and those who opt out and receive educational savings accounts. He said legislators put a lot of money into the account knowing it would be used for both.
On the other hand, Tamerlin Godley, the attorney for a group of parents challenging the program, told justices that “anything else in that appropriation is void” because it can only be used for public schools.
While it found a problem with the funding method, the state’s high court rejected other constitutional challenges to the school-choice program.
The court found that the program is not contrary to the Legislature’s constitutional mandate to provide for a uniform system of public schools. The state constitution, in a different section in the same article, also provides that the Legislature shall encourage education through all suitable means.
“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 under Section 1,” Hardesty wrote.
The court also ruled that the program does not violate the constitutional ban on using public funds for sectarian or religious purposes.
“Once the public funds are deposited into an education savings account, the funds are no longer ‘public funds’ but are instead the private funds of the individual parent who established the account,” the court ruled. “The parent decides where to spend that money for the child’s education and may choose from a variety of participating entities, including religious and non-religious schools.”
Nevada Attorney General Adam Laxalt, in a prepared statement, focused on those additional court findings regarding the program’s constitutionality.
“The Supreme Court agreed that the main constitutional hurdles to education choice cited by opponents are without legal merit,” Laxalt said.
“The court ruled against the state on a small funding issue that was not even debated or contentious when this bill was passed,” he said. “Fortunately, the Supreme Court has made crystal clear that (education savings accounts) are constitutional and that the Legislature can fix this funding technicality.”
Godley, the opponents’ attorney, said the court “agreed entirely with our argument that public school funds cannot be used for (education savings accounts).” Not using public school money for the program is much different politically, she said in an interview.
“Having spent over a half of a million dollars of state taxpayer funds on Paul Clement’s legal services, the state has apparently tried to spin it as a small technical setback, but the results speak for themselves—the program is permanently enjoined as unconstitutional,” Godley said.
She said the decision will have an effect across the nation.
“The reason the Nevada voucher program was so attractive to pro-voucher legislators in Nevada and in other states in that it allowed a legislature to look like they were funding public education and then siphon money out the back door for private expenditures. That is unconstitutional.”
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