School Vouchers Debate in Nevada High Court

LAS VEGAS (CN) — Nevada Supreme Court justices had plenty of questions about Nevada's sweeping school-choice law during oral arguments on two separate challenges to the law, particularly on how the Legislature's public-school spending bill coincided with state funds for private-school tuition.

The state's high court on Friday presided over more than two hours of arguments in two cases involving the constitutionality of a law that allows parents to take their children out of public schools and use, on average, about $5,100 a year in state money for tuition at religious and other private schools or for home schooling, tutoring and other educational expenses. The funding amount is based on a per-pupil formula that the state uses for distributing money to public schools.

The Republican-controlled Legislature passed the school-choice measure, Senate Bill 302, along party lines during its last session in 2015, and GOP Gov. Brian Sandoval signed it into law. The law has been described as the broadest in the nation because it applies to the parents of any student who has been enrolled in a public school for at least 100 days.

Justices appeared to focus most of their attention on the first case they heard, one dealing with whether the law is unconstitutional because it siphons off state funds that can only be used for the operation of public schools. In that case, a state court judge in Carson City sided with a group of parents and issued a preliminary injunction halting implementation of the law.

Much of the argument and questions from justices centered on whether the Legislature had met its constitutional mandate to pass an appropriations bill to sufficiently fund public schools while also enacting the school-choice measure.

Former U.S. Solicitor General Paul Clement, hired by the state to defend the law, told justices that the Legislature did meet that requirement by approving a $2 billion appropriations bill for schools that uses a distributive school account based on a per-pupil spending formula.

Legislators, he said, employed a practical approach by using the distributive account to fund those who stay in public schools and those who opt out and receive education savings accounts.

Lawmakers put a lot of money into the distributive school account "knowing that both the public schools and the (education savings accounts) would be funded by the same pot," Clement said.

School districts are guaranteed the per-pupil amount, he said.

Tamerin Godley, the attorney for parents challenging the law, argued that the school appropriations bill can only be used for the operations of public schools.

"Anything else in that appropriation is void," Godley said, calling it a "diversion violation" of the state Constitution. She said legislators, when considering the appropriations bills, never discussed using part of it for the school-choice law.

The second case to come before the court dealt with a lawsuit filed by the ACLU of Nevada, which claims the law is unconstitutional because it uses public funds for sectarian purposes. Many of the private schools in the state are religious.

A judge in Las Vegas rejected the ACLU's argument, granting the state's motion to dismiss the suit. He ruled that the education savings accounts go to parents, and "parents, and not the state, direct through their own independent decision the funds to religious education schools."

The arguments in Friday's appeal centered on whether the school-choice program directly or indirectly aids religious schools.

Chief Justice Ron Parraguirre used the example of state employees having health savings accounts that they can use for services at hospitals with a religious affiliation.

Richard Katskee, an attorney for Americans United for Separation of Church and State, said those health accounts are not the same because they are part of an employee's compensation. Katskee argued the state maintains ownership and control of the school-choice funds and the transfer of money goes from the state to the schools.

Clement, on the other hand, said the money ceases to be public when it's received by parents, who can then decide how to spend it in a neutral fashion.

The Nevada high court took the matter under submission and will rule at a later date.

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