ESAs are a nonstarter under Nevada’s constitution

Nobody who knows what's going on should be surprised that the ACLU of Nevada filed a lawsuit to block the state's new Education Savings Accounts.

The program allows parents to choose where and how to spend state school money for their children's education, including in private, religious schools. But it's got a major constitutional flaw.

Article 11, Section 10 of the Nevada Constitution reads, simply: "No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose."

But the Education Savings Accounts would allow parents to spend state education dollars at sectarian schools, thus violating this provision. And if you think the framers of this law didn't realize that, consider this: The bill that created ESAs specifically exempts them from NRS 387.045, which says state education funds cannot be devoted to "any other purpose," and specifically shall not be "set apart for the use or benefit of any sectarian or secular society or association."

Clearly, lawmakers worried that ESAs would violate the statute, and granted a special exception. But if they violate the statute, they must also violate the constitution. There's no getting around that.

Fans of ESAs are fond of repeating the sophistry that the state isn't using its money for sectarian purpose in ESAs because the money is deposited into accounts where its use is directed by parents. But that argument doesn't stand up to even the most superficial scrutiny.

First, children in Nevada are required to attend school. Second, the constitution requires the Legislature to appropriate funds for education, funds that we know cannot be "used for sectarian purpose." Money in ESA accounts can only be used to pay for a limited number of state-specified things (including books, tutoring, tuition at private school, etc.). The accounts cannot be used for anything else (although it would be a miracle if no fraud was attempted). If a student's ESA agreement is terminated, the funds revert to the state general fund.

In other words, ESA monies are state funds, used for a state purpose, under state restrictions, no matter who is doing the spending. To argue ESA money magically becomes private money requires an active indifference to the facts.

Proponents point to Supreme Court cases in which justices have said that federal funds can flow to religious institutions without violating the First Amendment's Establishment Clause. But those cases offer no real refuge: First, we're not talking about the federal constitution, we're talking about Nevada's constitution. And in a 1986 decision in Witters v. Washington Department of Services for the Blind, the U.S. Supreme Court said states may be more restrictive with regard to the use of education dollars at sectarian schools. (In 1989, the Washington state Supreme Court upheld that state's constitutional ban on state money being used for religious instruction.)

Finally, proponents run to the Arizona Supreme Court, which upheld a program similar to Nevada's, even though the Arizona Constitution says "no tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school."

Alas, there's still no help for ESAs, since Nevada's Constitution (quoted above) is much broader. In fact, Nevada's constitution is more akin to Washington state's, or Colorado's, where state Supreme Courts have struck down ESA programs because of the potential of state money flowing to sectarian schools.

Instead of crafting the ESA program in a way that would, at least, do less violence to Nevada's founding document, its framers chose to essentially ignore the constitution. This they cannot do. All their feigned outrage and disappointment is kabuki theater: They knew this scheme was a loser from the start.

— Steve Sebelius is a Review-Journal political columnist. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or ssebelius@reviewjournal.com.