ACLU’s ESA lawsuit relies on anti-religion provision in Nevada Constitution

The ACLU of Nevada has claimed that it is standing up for religious liberty by filing a lawsuit challenging the constitutionality of the state's new Education Savings Account program. The organization's claim is ironic for two reasons. First, the ESA program merely empowers parents to exercise their constitutionally protected right to direct the education and upbringing of their children — a right the ACLU claims to respect. Second, the provision of the Nevada Constitution that the ACLU relies upon to make its case — Article 11, Section 10 — is deeply rooted in religious bigotry.

Proposed in 1877 as an amendment to Nevada's Constitution, Article 11, Section 10 declares that "No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose." Does the ESA program violate this provision? You decide.

The ESA program — often mistakenly referred to as a voucher — is a parent-controlled education savings account. Families who participate in the ESA program agree not to enroll their child, full time, in a public school. In exchange for that agreement, the state treasurer makes quarterly deposits into each student's savings account, up to $5,100 per year for most students, which parents may then use on a wide range of educational options. Authorized expenses include not just private school tuition, but also things such as tutoring, curriculum for home education, distance learning programs, transportation and special education services. Participating students may still take individual classes from traditional public or charter schools, but their quarterly ESA deposits are reduced by the amount paid to public schools for such classes.

Yes, parents may voluntarily choose to enroll their children in a religious school — and use the funds deposited in their student's ESA to pay for tuition. Under the terms of the program, the government stays out of each family's educational placement decision. By offering educational benefits on even terms to all families, both religious and nonreligious, the state protects religious liberty.

Moreover, by structuring the ESA program to give families a genuine, independent choice as to how and where they use their ESA funds, the state complies with the plain language of Article 11, Section 10. From the state's perspective, every single dollar is spent for the purpose of educating children. And there is no constitutional bar to using public funds for educational purposes.

Sadly, the ACLU's lawsuit, by trying to extend the reach of the Nevada Constitution to encompass religiously neutral education assistance programs such as ESAs, would do nothing more than expand the anti-religion animus that originally motivated the adoption of Article 11, Section 10.

The late 19th century was a time of significant hostility toward Catholics. Our nation's public schools were predominantly Protestant in orientation. In response to being forced to attend Protestant schools, Catholic immigrants argued for a separate share of the common school funds. Ardent opposition to publicly funded Catholic schools led Protestants to amend numerous state constitutions to prohibit funding for "sectarian" schools or purposes. As the U.S. Supreme Court has acknowledged, it was an open secret that the term "sectarian" meant Catholic and that these constitutional amendments were "born of bigotry."

Nevada's Catholic controversy arose because of state appropriations made directly to a Catholic orphanage. The Nevada Supreme Court acknowledged in 1882 that Article 11, Section 10 was aimed at eliminating the "evil" of funding that orphanage. An 1877 Nevada Daily Tribune piece supporting the adoption of Article 11, Section 10, confirms the prejudice: "This is a move in the right direction and will, we trust, meet with the hearty approval of every citizen of Nevada ... for this is a stepping stone to the final breakup of a power that has long cursed the world, and that is obtaining too much of a foothold in these United States." Sadly, Nevada was swept up in the same anti-Catholic fervor that was sweeping the rest of the nation.

By seeking to strike down the ESA program because it permits families to enroll their children in religious schools, the ACLU seeks to expand Article 11, Section 10's discriminatory intent.

— Tim Keller is the managing director of the Institute for Justice's Arizona office.