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Nevada claims ‘irreparable harm’ from injunction blocking school choice

Parents and students have “suffered irreparable harm” after a state judge put the brakes on Nevada’s education savings accounts, according to the state attorney general’s office.

In a brief filed late Friday, state solicitor general Lawrence VanDyke attacked the ruling last month by Carson City District Judge James Wilson to halt the implementation of Nevada’s controversial school choice program.

The judge sided with opponents who claimed diverting money away from public schools and into accounts that parents could use to pay for private school tuition and other education services would destroy the K-12 system in Nevada.

Wilson issued a preliminary injunction against the program, which Attorney General Adam Laxalt later appealed to the state Supreme Court.

“If anything, the parents and students who looked forward to improving their educational options through the (education savings account) program have suffered irreparable harm because of the district court’s unsupportable injunction,” VanDyke wrote in an opening brief of the state’s appeal.

Last year, the Nevada Legislature passed and Gov. Brian Sandoval signed Senate Bill 302 to establish the education savings accounts, or ESAs, which many consider to be most sweeping school choice program in the country.

SB 302 allows parents to tap the state share of per-pupil funding to help pay to send their children to private or religious schools. The amount averages about $5,100 per year per student, and parents could use the money for tuition, transportation or other educational purposes.

In his 16-page decision, however, Wilson ruled that the Nevada Constitution requires “the legislature to set apart or assign money to be used to fund the operation of public schools, to the exclusion of all other purposes.”

In his brief, VanDyke challenged that logic and argued lawmakers intentionally merged funding for public schools and the voucher-style ESA program since both receive per-pupil allocations.

“This was no mistake,” the brief reads. “Funding the public schools and the ESA program out of the same pool of money is the most natural and efficient way to fund the ESA program.”

The brief adds, “It is impossible to believe the ESA program is unconstitutional simply because the legislature chose to adopt a more efficient funding mechanism that the text of the Constitution comes nowhere close to prohibiting.”

Tamerlin Godley, an attorney representing six parents who challenged SB 302, countered that argument, saying the Constitution creates a “lock box” on money that lawmakers set aside for use solely at public schools.

She also estimated the Clark County School District alone would lose $17.5 million based on the number of early applications to create an ESA, with the amount growing as more parents opt into the program and as more students become eligible.

“If SB 302 is implemented, it will have an impact on children that cannot be reversed,” Godley said. “We have a situation where the state would pay out millions of dollars in money earmarked for public education that it could not claw back, or we stick with the status quo.”

At the attorney general’s request, the Supreme Court granted an expedited briefing schedule for the ESA case. Godley has three weeks to file her response, with oral arguments following soon after.

A Clark County District Court judge has yet to issue his decision in a separate lawsuit, filed a month earlier than Godley’s, that also challenges SB 302.

Contact Neal Morton at nmorton@reviewjournal.com or 702-383-0279. Find him on Twitter: @nealtmorton

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