Two reasons judge is wrong in ESA ruling

The state’s Republican establishment was gleeful Wednesday, after Clark County District Court Judge Eric Johnson ruled the new Education Savings Account program was constitutional.

ESAs, as they’re called, allow parents to take the state portion of education dollars and use the money for everything from books to tutoring to tuition at private schools.

The American Civil Liberties Union of Nevada brought suit, contending ESAs were unconstitutional because they’ll end up directing state education money to private, religious schools, in apparent violation of Article 11, Section 10 of the state constitution.

But Johnson ruled that the constitution is no barrier to funding religious academies, dealing a blow to one of the strongest arguments against ESAs.

Here are two reasons Johnson’s ruling may be overturned by the state Supreme Court.

• Let a thousand schools bloom? Johnson said the constitution orders the Legislature to “encourage by all suitable means the promotion of intellectual, literary, scientific, mining, mechanical, agricultural and moral improvements,” as well as to provide “a uniform system of common schools.” But instead of concluding that the uniform system of common schools is the method of promoting education, he ruled that public schools are but one method among other, unenumerated ones. Under his theory, ESA accounts supporting private education are OK.

But there’s reason to conclude the framers intended public schools and universities to be the only forms of state-supported education in Nevada. Private schools existed at the time the constitution was written, but they go without mention in the document. If the framers had intended the state to fund private schools, the authors never said so.

• Sectarian spending OK? Johnson freely admits some of the ACLU’s key allegations — the constitution prohibits state education dollars being spent for “sectarian purposes,” the ESA program inevitably will see school funds end up at religious institutions and those schools may use those funds for sectarian purposes. But instead of concluding the program is thus unconstitutional — at least with respect to religious schools — he instead concludes everything’s fine.

First, Johnson says, the Legislature had no intent to aid religious schools. Second, he says, the state isn’t directing money straight to private schools; parents do that through their own free choice, which other states’ courts have concluded is proper.

But whether or not the Legislature intended to aid religious schools or to promote a particular religion, lawmakers were aware that some ESA money would end up at private, religious schools. (Indeed, Johnson acknowledges that the majority of private schools that applied to participate in the program are religious.)

And while parents may make the actual spending choices, they are acting as agents of the state when they do so. (ESA money is highly circumscribed, can be spent only on a narrow list of authorized uses, and reverts to the state when accounts are closed. The money never becomes the private property of a parent.) Johnson dismisses this very important distinction all too briefly, saying the form of the program is irrelevant. But it’s not only relevant, it may be dispositive.

In sum, the authors of Nevada’s constitution were clear: They commanded that “no public funds of any kind or character whatever, state, county or municipal, shall be used for sectarian purpose.” They banned sectarian instruction at public schools and universities. And they ordered that any violators of these rules lose their state funding. It’s hard to see any way in which they’d be fine with ESAs, a fact Nevada’s Supreme Court must now consider when the inevitable appeal is filed.

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

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