In the contentious fight over Nevada’s stalled Education Savings Account program, there is one narrow issue upon which everyone seems to agree: the legality of the program must be determined, and quickly.
Nevada state officials, led by Treasurer Dan Schwartz, pushed the Nevada Supreme Court to grant an expedited hearing in a lawsuit filed by seven Nevada parents that seeks to declare the program unconstitutional. Carson City District Judge James Wilson last month granted an injunction that temporarily halts the program, prompting the state to appeal.
The plaintiffs in the case didn’t object to an accelerated schedule, and the Supreme Court granted the petition, which means briefs will be written and submitted over the course of about two months, as opposed to the usual six.
This is eminently a good thing: Resolving the legal challenges to the groundbreaking ESA program is in the best interests of everyone in Nevada, not least of whom are parents who have waited long enough to give their children a chance to escape failing public schools and enroll in private schools or pursue a more customized education.
“We are receiving letters from parents that have been sent to both our office and to [Nevada Supreme Court] Chief Justice James Hardesty concerned about the injunction and delay in implementing the ESA program,” Mr. Schwartz said in a statement the day before the court’s accelerated timeline was announced. “Thousands of Nevada parents are affected. Moreover, parents and schools have asked how to proceed for next year as well.”
Now that the calendar question has been resolved, the court can address the merits of the case. We’ve long argued that the work of the Nevada Legislature in passing the ESA program should be given wide deference. Judge Wilson’s ruling — that the ESA program diverts money intended for public schools in violation of the state constitution — rests on an overly narrow reading of Article 11, Section 6.1 and 6.2. Although state education funds will be diverted from Nevada’s public schools in the ESA program, they will still be used exclusively for the purpose of educating students. (Other funds, including federal funds, will remain with the public school system, even if students elect to take classes elsewhere.)
This use of state funds is not only consistent with the purpose of Article 11 in general, but also with the specific language of Section 1, which says “The Legislature shall encourage by all suitable means the promotion of intellectual, literary, scientific, mining, mechanical, agricultural, and moral improvements.” Using taxpayer dollars to support the education of taxpayers’ children is certainly a suitable use of those funds, and clearly reflects the intent of the Legislature in passing the ESA program in the first place.
For that reason, we once more urge the Nevada Supreme Court to approach the ESA debate consistent with longstanding principles of interpretation, including especially the presumption of constitutionality of every bill passed by the Legislature and the heavy burden borne by challengers to prove a law is unconstitutional. The sooner the high court affirms the legality of the ESA program, the better for Nevada’s families and the state’s economy.