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Judge upholds Nevada’s controversial school choice bill

A Las Vegas judge on Wednesday ruled Nevada’s controversial new school choice bill does not violate a constitutional ban against the use of taxpayer money for religious purposes.

In an order dismissing a lawsuit challenging the legislation, District Judge Eric Johnson upheld the constitutionality of Senate Bill 302 as a program “neutral with respect to religion” because parents — not state actors — decide whether they will use an education savings account, or ESA, to pay for tuition at private and religiously affiliated schools.

Johnson also ruled a provision in the Nevada Constitution that charges state lawmakers with encouraging education “by all suitable means” permits the ESA program in addition to the public school system.

SB 302, passed in the 2015 Nevada Legislature, offers parents about $5,100 in per-pupil state funds to spend on private school tuition, home-school expenses and other educational services if they pull their children out of a public school.

“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,” Johnson wrote in his decision.

“Parents, if they choose to use the ESA program, must expend the ESA funds for secular education goods and services, even if they choose to obtain those services from religion affiliated schools,” he added.

His ruling does not guarantee parents immediate access to the ESA program because a Carson City judge in January issued an injunction against its implementation in a separate case challenging SB 302.

The Nevada Supreme Court is expected to schedule hearings in an appeal of that case soon.

In a statement, Republican Gov. Brian Sandoval described Johnson’s ruling as a “victory” for Nevada families.

“School choice was an important part of the legislative education reform package enacted in 2015,” Sandoval said. “I hope that all pending litigation challenging these critical reforms will soon be resolved for the sake of our students who deserve every opportunity to succeed.”

The American Civil Liberties Union of Nevada, which filed the case in Clark County District Court last August, will make a decision on how to react to Johnson’s decision “soon.”

According to the civil rights advocacy group, 27 of the 48 schools that as of January applied to participate in the ESA program have a religious affiliation.

“We are disappointed by the court’s decision,” Amy Rose, legal director for the ACLU of Nevada, said in a statement.

“Nevada’s voucher program allows private religious schools to use taxpayer dollars to indoctrinate and discriminate against students on the basis of religion, sexual orientation, gender identity, disability, and other grounds,” she added. “Taxpayer funds should not be used for these discriminatory purposes.”

In his 45-page order, Johnson first tackled the ACLU’s argument that SB 302 violated a constitutional provision to create a “uniform system of public schools.”

Johnson sided with attorneys for the state who countered that the additional “by all suitable means” provision does not limit the Nevada Legislature from only encouraging education through the public school system.

“If the framers (of the constitution) wanted to limit the broad discretion they accorded the Legislature … they could have easily and should have clearly stated it,” Johnson wrote.

He also dismissed the ACLU’s claims that SB 302 would drain critical resources from public schools and promote discrimination in hiring and admission decisions at religious schools.

Once the program is actually implemented, Johnson suggested, those injuries could occur and provide grounds for a plaintiff to file a new lawsuit.

“Whether Nevada’s ESA program is wise educational or public policy is not a consideration germane to the narrow issues of Nevada constitutional law that are before this court,” Johnson wrote.

“In the absence of a constitutional violation, the desirability and efficacy of the ESA program are matters to be resolved through the political/legislative process.”

Review-Journal staff writer Sandra Chereb contributed to this report. Contact Neal Morton at nmorton@reviewjournal.com or 702-383-0279. Find him on Twitter: @nealtmorton

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