State seeks dismissal of lawsuit against education savings accounts

The state attorney general's office, charged with defending Nevada's new education savings accounts, will ask a Las Vegas judge this week to dismiss a lawsuit challenging the controversial program's constitutionality.

Attorney General Adam Laxalt faces a Monday deadline to submit an official response to the lawsuit, which the American Civil Liberties Union filed in August in Clark County District Court.

The national organization, joined by its Nevada chapter and Americans United for the Separation of Church and State, argues the education savings accounts violate a provision in the state constitution that prohibits the use of public funds for religious purposes.

Widely considered the most expansive school choice program in the country, ESAs offer parents about $5,000 in per-pupil funding if they pull their student out of public school and pay for private school tuition or homeschooling, tutoring and other education services. Because the majority of private schools in Nevada are religious, the ACLU contends the state cannot allow parents to funnel taxpayer dollars to a sectarian campus.

In addition to the motion to dismiss, Laxalt's office Monday will ask a district judge to expedite its decision.

"The (ESA) program, which provides Nevada families with genuine educational choice, offers parents new opportunities to give their children an environment most conducive to their success," Laxalt said in a statement.

"The lawsuit misunderstands the intent of the program, twists Nevada's Constitution and creates uncertainty for thousands of Nevada's educators, parents and students," the statement reads.

The ESA program also faces a second legal challenge from a group of parents and the education reform group Educate Nevada Now. They argue the program drains money from the public school system.

ESAs don't go into effect until next year, but the state treasurer's office, which will administer the accounts, already has received more than 3,500 applications for early enrollment in the program.

Of the applications processed through an electronic database, nearly 83 percent list an address in Clark County. The Clark County School District accounts for roughly 70 percent of public school students in Nevada.

About 63 percent of the applications are for children 10 years and below.

"Nevada's parents have long waited for this opportunity to improve their children's education. That is why so many have already signed up," Treasurer Dan Schwartz said Friday.

"The program will benefit not only today's students and parents but will advance the future of Nevada," he added.

Last week, the Nevada Board of Examiners approved a $10,000 contract for Laxalt's office to consult the nationally recognized law firm Bancroft PLLC for legal strategy and analysis on the ESA case.

Leading Bancroft's involvement in the case will be former U.S. Solicitor General Paul D. Clement, who has argued more than 75 cases before the U.S. Supreme Court and is widely recognized as a top appellate advocate in the country.

The attorney general's office plans to seek an additional $285,000 to cover Clement's help in defending the ESA program in trial court.

"I certainly think that means they're scared that this is a real challenge," Amy Rose, legal director with the ACLU of Nevada, said on Wednesday.

"The fact that they're willing to spend an enormous amount of money to defend (the ESA program) indicates to the public and to us that there is a real concern that this is not constitutional," she added. "You have to bring in a very expensive lawyer to try to defend their more or less unconstitutional position."

Review-Journal writer Sean Whaley contributed to this report.

Contact Neal Morton at nmorton@reviewjournal.com or 702-383-0279. Find him on Twitter: @nealtmorton