100°F
weather icon Clear

Lawsuit full of flaws

For two decades, Nevada proved barren ground for education reform. But after voters last year sent a slew of new faces to Carson City, state lawmakers enacted one of the nation's strongest school choice measures, vastly expanding the freedom of parents to decide how and where they educate their children.

Defenders of the status quo, however, now ask the courts to scuttle the nascent plan. Late last month, the ACLU's Nevada chapter filed suit in District Court contending that Nevada's Education Savings Account program violates the state constitution because, among other things, it "allows private religious schools to receive unlimited amounts of taxpayer funds and to use those funds for religious education, indoctrination and discrimination."

The argument fails on a couple of fronts.

Nevada's choice legislation — passed as Senate Bill 302 and signed into law by Gov. Brian Sandoval in June — allows parents to divert a large portion of the money that would have gone to educate their children in the public schools into accounts that may be used for other education-related expenses. The accounts top out at about $5,700 annually, and approved expenditures include textbooks, tutoring, transportation, homeschooling, private school tuition and a handful of other items.

The law "ensures that all children, regardless of financial ability, will have the opportunity to attend a school that best fits their needs," Gov. Sandoval said earlier this year.

The ACLU lawsuit argues, however, that the choice plan not only fails to comply with a state constitutional provision requiring the Legislature to "provide for a uniform system of common schools," it also runs afoul of a constitutional mandate that no "public funds of any kind or character whatever, State, County, Municipal, shall be used for sectarian purpose."

It's worth noting that this latter clause — formally approved in 1880 and similar to so-called Blaine Amendments found in 36 other state constitutions — was borne of discrimination and bigotry and intended to stop immigrant Catholics from establishing their own schools as an alternative to the Protestant-oriented curriculum that dominated education in the late 19th century. How ironic that the ACLU, an organization founded to defend and preserve individual rights and liberties, would wrap itself around a provision with such a dubious pedigree.

History aside, Nevada's choice plan does not require the state to direct any money to private religious schools or institutions. Instead, it is entirely up to parents to freely decide how best to allocate the funds they receive. The state plays no role in that choice — other than ensuring the money must be used for educational purposes — and thus neither endorses nor advocates any sectarian purpose. To discount this vital distinction is to argue that Nevada law prohibits a displaced worker from setting aside a portion of her unemployment check to pay private school tuition for her child.

As for the notion that the choice plan flouts the requirement that the state "provide for a uniform system of public schools," this should be dismissed out of hand. The provision simply directs Nevada to establish and maintain a public education system open and accessible to all students. Such a system remains in place, with or without Education Savings Accounts.

Far from harming the public school system, Nevada's bold school choice program challenges districts and campuses to more aggressively meet the needs and demands of parents and children — or risk losing them.

The U.S. Supreme Court in 2002 held that properly designed school choice programs comply with the federal Constitution. Meanwhile, the vast majority of state courts that have examined such plans — most notably in Arizona — have rejected challenges similar to the ACLU's effort to torpedo Nevada's reforms.

Advocates of broadening opportunities for the state's schoolchildren should hope the Nevada courts follow suit and recognize that this choice plan passes constitutional muster. The alternative is to again shackle thousands of Nevada families to an insulated education establishment that too often falls short of a passing grade.

Las Vegas resident John Kerr, former editorial page editor of the Review-Journal, is a communications fellow with the Institute for Justice, a public-interest law firm in Arlington, Va. The Institute for Justice was involved in the drafting of Senate Bill 302.

MOST READ
Don't miss the big stories. Like us on Facebook.
THE LATEST
LETTER: Siding with Trump over Powell

I’m on Donald Trump’s side with his economics and politics — not the side of Fed chief Jerome Powell.

MORE STORIES