State OKs funds to fight education savings account legal challenges

CARSON CITY — Nevada’s legal bill to defend its education savings account program grew exponentially Tuesday, but the attorney general’s office said a $285,000 contract to continue using private legal counsel to assist in defending the new school choice program is a bargain.

The state Board of Examiners approved the funding to defend Nevada’s controversial education savings account program from two separate court challenges.

Attorney General Adam Laxalt is defending the program approved by the 2015 Legislature from a legal challenge by the American Civil Liberties Union that was filed in August in Clark County District Court. The contract will also cover a separate challenge against the program filed by several Carson City parents.

Last month the board, including Gov. Brian Sandoval and Laxalt, approved a $10,000 contract for Laxalt’s office to consult the nationally recognized law firm Bancroft PLLC for legal strategy and analysis on the ESA case. So the total to the firm is now $295,000 and could grow if there are appeals.

The increased funding will allow for the continuing involvement of the firm, led by former U.S. Solicitor General Paul D. Clement, who has argued more than 75 cases before the U.S. Supreme Court.

Nick Trutanich, chief of staff to Laxalt, said the legal work already performed by the firm to defend Nevada’s program exceeds 500 hours. At the firm’s regular hourly rates, the cost would total $375,000 through Tuesday, he said.

The contract with the firm carries through trials in both cases should they go that far, Trutanich said. Any work on appeal would require a new agreement, he said.

But Sandoval said a contract for legal services if an appeal is required is expected to be less than the amount approved Tuesday.

He has asked that the legal challenges be resolved as quickly as possible so parents know whether they can participate.

The money will come out of a contingency fund account overseen by the Board of Examiners that has about $6 million.

Trutanich said the best chance of defending the program is to partner with the Bancroft firm because of its expertise.

“The eyes of the nation are truly on Nevada and this ESA program,” he said.

The ACLU, joined by its Nevada chapter and Americans United for the Separation of Church and State, argue the education savings accounts violate a provision in the state constitution that prohibits the use of public funds for religious purposes.

Widely considered the most expansive school choice program in the country, ESAs will offer parents about $5,000 in per-pupil funding if they pull their student out of public school and pay for private school tuition or homeschooling, tutoring and other education services.

Because most of private schools in Nevada are religious, the ACLU contends the state cannot allow parents to funnel taxpayer dollars to a sectarian campus.

ESAs don’t go into effect until next year, but the state treasurer’s office, which will administer the accounts, already has received more than 3,500 applications for early enrollment in the program.

Contact Sean Whaley at or 775-687-3900. Find him on Twitter: @seanw801

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