State school choice plan clears legal hurdles

Judicial decisions are notoriously hard to translate into accurate news reports. Judges often make nuanced and esoteric legal distinctions and frequently what is not said is as important as what is said.

Last week’s state Supreme Court decision on Nevada’s groundbreaking education savings accounts program was a perfect example of this. Many Nevadans may have been left with the mis-impression that the program, to use a phrase from the headlines, was “struck down.” I can assure you that it was not.

My office has spent the last year defending the law, so I am in an ideal position to explain what the decision means for Nevada.

The various plaintiffs in two separate cases made two broad challenges to the school choice law’s constitutionality. First, they said that the program unlawfully allowed public money to fund “sectarian” entities like religious schools. Second, they said that the Legislature could fund education in Nevada only through the public schools.

The Nevada Supreme Court rejected both arguments. This is not a matter of interpretation or ambiguity, but a black-and-white legal fact. The court unambiguously declared that there is no constitutional roadblock to Nevada creating a school choice program involving education savings accounts.

As to the first argument, some plaintiffs argued that even if the Legislature intended the money for educational purposes, parents’ use of the money at schools with religious affiliations somehow tainted it and rendered the whole law unconstitutional. The Nevada Supreme Court instead adopted the common-sense view, as we argued, that it is not the state or the Legislature but the “parent [who] decides where to spend that money for the child’s education.” Some parents may choose religious schools. Some may not. Some may opt to use ESAs to help with home-schooling or tutoring. All are fine. The key is that it is the parents choose how to use the money, not any state official.

On the second argument, the court agreed with other state high courts that the “legislative duty to maintain a uniform public school system is ‘not a ceiling but a floor upon which the legislature can build additional opportunities for school children.’ ” Of course the Legislature must fund the public schools. But it is also free to fund other educational opportunities for our children, including education savings accounts.

My office entered this lawsuit as part of my duty to defend Nevada law against constitutional attack. That is precisely what my office did over the past year — successfully, and in record time. In other states, major educational-choice cases have taken more than six years to be resolved.

Our Supreme Court has made clear there are no constitutional obstacles to implementing an ESA program in Nevada. The program simply requires funding. The program remains in place, ready to spring into action. The court found that the Legislature created a lawful program but that lawmakers had improperly funded the plan. The bottom line: All legal hurdles to moving forward with this school choice plan are cleared.

From here on out, opponents of education savings accounts can no longer claim that they are unconstitutional in Nevada. This is a huge and historic victory for school choice, for the authors and supporters of this legislation and, most importantly, for our children across the state of Nevada — indeed, across the nation.

Adam Paul Laxalt is Nevada’s attorney general.

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