ACLU sues to stop Nevada education savings accounts

School choice advocates from across the state and country rushed to defend Nevada’s new education savings accounts after the American Civil Liberties Union filed a lawsuit challenging the program’s constitutionality.

Stung by the recent defeat of a similar voucher system in Colorado, right-leaning think tanks vowed their support for what many consider the most aggressive private school choice in the country. State lawmakers and education reform groups also criticized the ACLU of Nevada’s lawsuit, filed Thursday in Clark County District Court, and warned its success would harm students.

“Instead of empowering parents to help their children find an education environment that meets their needs, the ACLU wants to go back to a system of hard zoning, forcing poor and minority students into chronically failing schools and furthering cycles of generational poverty,” Assistant Senate Majority Leader Ben Kieckhefer, R-Reno, said in a statement.

“The only people who lose if the ACLU is successful are the children of Nevada,” he added.

Education savings accounts, or ESAs, allow about $5,000 in per-pupil funding to follow a student who leaves a public school and instead funnels the money into a private or parochial campus.

Families also can spend the money on homeschooling, tutoring and other education services.

Representing a group of taxpayers and community activists, the ACLU in its lawsuit claims ESAs violate a provision in the state constitution that bars any use of public funds for a sectarian, or religious, purpose. The ACLU of Nevada is joined in the lawsuit by the national ACLU and the advocacy group Americans United for Separation of Church and State.

It’s unclear whether there are sufficient grounds to challenge the program in court, since the accounts do not go into effect until Jan. 1 and families won’t receive any money until months later.

Regardless, the ACLU plans to ask a judge to temporarily halt the state’s implementation of ESAs.

“The education savings account law passed this last legislative session tears down the wall separating church and state erected in Nevada’s constitution,” said Tod Story, executive director for the ACLU of Nevada.

Supporters “knew this bill violated the state constitution but proceeded with the scheme anyway,” he said.

Within hours of the ACLU filing its complaint, the libertarian law firm Institute for Justice announced it would intervene in the lawsuit in hopes of defeating it.

The Virginia-based group advised state lawmakers during the drafting of ESA legislation, and senior attorney Tim Keller argued in a legal memo that Nevada’s constitutional ban on using public funds for religious purposes only impacts government entities, not private individuals.

“Parents use the funds in their child’s education savings account to obtain the best available education for their children,” Keller wrote. “The state does not — and could not — view the funds deposited in any education savings account as furthering sectarian purposes because the state takes no action to influence parents’ genuine and independent choice as to how they use the funds.”

ESAs will face at least one additional legal challenge from the education reform group Educate Nevada Now, though it plans to use a legal framework separate from the ACLU.

Sylvia Lazos, policy director for Educate Nevada Now, said drawing money out of traditional school districts and using that for private education contradicts a constitutional requirement that lawmakers “sufficiently” fund public schools.

Additionally, Lazos noted the State Board of Education, which regulates and monitors all public schools in Nevada, has no authority to track student performance, modify curriculum standards or set other requirements at private schools.

“In the case of private schools, none of those requirements exist, and that’s why they’re private,” she said. “We’re going to use public funds to subsidize and basically finance a system that is not uniform.

“There will be two systems, with the private schools doing their own thing, which they should be able to do, just not with public funds,” Lazos said. “You should be able to exercise choice, but not at the expense of the public education system.”

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

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