School choice case pits GOP law against GOP law
CARSON CITY — Call it an ironic political twist of fate.
A constitutional amendment spearheaded more than a decade ago by a conservative Republican to take politics out of Nevada education funding is now at the heart of a legal battle that could upend a conservative GOP ideal — public funding for school choice.
The Education First Initiative was launched by then-U.S. Rep. Jim Gibbons, R-Nev., and Dawn Gibbons, his wife and state assemblywoman at the time, following the debacle of the 2003 Legislature and epic fight over school funding.
Passed overwhelmingly by voters in 2004 and 2006, the amendment requires the state Legislature to fund K-12 public education before any other part of the state budget.
Fast forward 10 years to last week: Carson City District Judge James Wilson cited a key provision of that amendment when he issued an injunction temporarily blocking Nevada's new education savings accounts intended to allow parents to use state money to pay for tuition at private or religious schools.
Two ideas with conservative roots in different decades are now on a collision course to the Nevada Supreme Court.
"How ironic is this?" UNLV political scientist David Damore said.
Unperceived consequences
"It is ironic and certainly it's remarkable what a couple decades can do," said Fred Lokken, political scientist at Truckee Meadows Community College in Reno.
It harkens to the ugly and nasty 2003 legislative session, when the education budget was held hostage in a political dogfight over taxes. The battle erupted when Gov. Kenny Guinn, in a petition filed in the dead of night by then-Attorney General Brian Sandoval, sued the Legislature in the state Supreme Court. The court in an unprecedented ruling said lawmakers could pass a tax increase by a simple majority instead of the constitutionally required two-thirds margin — another Gibbons-led measure from the 1990s — to comply with its other constitutional mandate to fund education.
That legislative session dragged on until late July before the stalemate ended and the budget passed with a two-thirds vote. But the drawn-out battle forced the Clark County School District to freeze hiring of more than 1,000 teachers, and some other districts pushed back the start of the school year.
The Education First Initiative was intended to make sure that didn't happen again by requiring lawmakers to approve public school funding before other spending bills. Gibbons highlighted the initiative in his successful run for governor in 2006. With the wounds from 2003 still raw, the measure garnered widespread bipartisan support, including endorsements from Guinn, a Republican, and Democratic U.S. Sen. Harry Reid.
Education accounts
Viewed as the most sweeping school choice law in the country, Senate Bill 302 — backed by the Republican-controlled 2015 Legislature and now-Gov. Sandoval — seeks to allow parents to tap the state share of per-pupil funding to help send their children to private or religious schools. The amount averages about $5,100 per year per student and was supposed to start next month.
Six families sued, arguing ESAs illegally divert some of the state's general fund dollars away from public schools and will harm public school children.
In his Jan. 11 ruling, Wilson zeroed in on two sections of the Nevada Constitution when he granted an injunction stopping the program from taking effect. One of those is section 6.2 of Article 11, which was added to the constitution when voters ratified the Education First Initiative in 2006.
That provision mandates the Legislature appropriate money "it deems to be sufficient" to fund the operation of public schools.
Wilson said the diversion of money from the general fund school appropriation to pay for private tuition "reduces the amount deemed sufficient by the Legislature to fund public education" and therefore violates the Nevada Constitution.
The judge found the parents have a "reasonable" chance of prevailing at trial and faced irreparable harm if the program goes forward.
The injunction put the program on ice for now. The case is on track for a full trial before Wilson, and the Nevada attorney general's office on Friday appealed Wilson's decision to the Nevada Supreme Court.
Another lawsuit contending ESAs violate a constitutional prohibition against using state money for religious purposes also is pending in Clark County.
Eric Herzik, political scientist at the University of Nevada, Reno, predicted the funding issue and how the Legislature defines "sufficient" levels will be the definitive crux in the legal case.
"The fact that Wilson accepted it and said we're not going to go forward, which indicates a reasonable chance of the plaintiffs to win, then the ESA has more serious challenges than the other lawsuit on sectarian purposes," he said.
"This just completely complicates the debate over the ESA," Herzik said.
Full circle
Sheila Leslie, a former Democratic assemblywoman and state senator for Reno, said she was against the Education First Initiative when it was proposed because it seemed like a political stunt.
"This constitutional amendment really didn't change anything in terms of procedures in the legislative budget process," she said. Spending bills are routinely passed in the final days of a session after lawmakers spend months vetting funding needs.
Now she sees the Education First Initiative in a new light, particularly under the glare of the ESA spotlight.
"It shows that even though we disagreed with Jim Gibbons on almost everything … I think the intent, besides the political maneuver, was to show support for public education," Leslie said.
"Even though it didn't do anything until now, it's gratifying to see that the constitutional amendment has really in the end protected public education.
"Sometimes things work out the way they're supposed to," she said.
Still, the high court will have final say.
"Of course the Supreme Court may have an entirely different take on this," Damore said.
— Contact Sandra Chereb at schereb@reviewjournal.com or 775-687-3901. Find her on Twitter: @SandraChereb.
