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Nevada’s Voucher Program: The Next Legal Battle in the War for Parental Choice

By Carolyn Phenicie | September 14, 2015

There is widespread public support for Nevada’s landmark statewide Education Savings Accounts, a public opinion poll finds, as the controversial proposal prepares for its journey through the state court system.
According to a survey of about 600 residents, 61 percent of Nevadans support the ESA, which was described as a program that “uses state funds to create a personal account to fund education expenses, including tutoring, testing fees and books.” There was majority support among respondents of all political affiliations and among union households.
The Nevada survey was conducted just prior to the American Civil Liberties Union of Nevada and Americans United for Separation of Church and State filing suit two weeks ago to block the program on the grounds that it violates provisions in the state constitution  banning state support of religious activities and requiring a “uniform system of common schools.”
The American Federation for Children, which recently sponsored The Seventy Four’s New Hampshire Education Summit, commissioned the poll. It was conducted by The Tarrance Group, a Republican-aligned polling firm. The Nevada results contrast with this year’s national Gallup/PDK poll, which found that 57 percent of respondents across the country oppose “allowing students and parents to choose a private school to attend at public expense.”
The ACLU and Americans United, filing the suit on behalf of five Nevada taxpayers, argue that the program violates provisions in the state’s Constitution barring the use of public funds for sectarian purposes broadly and for education specifically. In short, “We do not want to see public tax dollars being used to fund sectarian religious purposes,” said Nevada ACLU Executive Director Tod Story.
Previous court rulings in other states have split on whether public financing of religious education violates prohibitions on government financing of religion. At the federal level, the Supreme Court in 2002 ruled that a private school choice program in Cleveland did not violate the First Amendment’s prohibition on state support of religion so long as it had five characteristics, including that it gives money to parents rather than directly to the schools.
The high court in Arizona, one of the most recent states to consider something similar, allowed the ESA program there for certain classes of students — such as those from military families or with special needs — to continue. The Colorado Supreme Court, though, threw out a district-wide program, citing illegal state support of religion.
The difference in court rulings, Story said, comes from the distinctions in the state constitutions: Arizona’s prohibition on state funding for sectarian purposes is weaker than Colorado’s. He said Nevada’s is closer to Colorado’s.  
“Nevada’s no-aid [to religious entities] clause is unequivocal. It says no money. Arizona’s says there can be no appropriation to a sectarian purpose,” Story said.
At least one backer of the program, though, said the argument that the program amounts to unconstitutional state support of religion is “crap.”
The Institute for Justice, a libertarian group that defends school voucher programs, reviewed the Nevada constitution while helping legislators draft the law, said Dick Komer, senior attorney at the group.
“We think the program is constitutional and we think they are completely mistaken in how they are interpreting the Nevada constitution,” he said.
The ACLU also argues that the program violates a provision in the state constitution requiring a uniform system of public schools. That argument has been used successfully in other states to overturn programs — notably in Florida, where the state’s high court said the voucher program for failing schools couldn’t be paid for with state funds.
“How are you going to take public dollars and say you don’t require the same standard for that public dollar that you do of a public school when you divert it to a private school?” Story asked.
The ACLU’s complaint specifically is that religious schools aren’t held to the same standards as public schools, not that there is a funding disparity, Story said. The court filing details the admission and discipline policies of many private schools in the state, many of which require students and teachers to adhere to a particular religious faith, teach the Bible or other religious texts, or prohibit students and teachers from certain conduct, like homosexuality.
Backers of the program dismiss that argument, too.
The plaintiffs in the suit ignore another clause in the Nevada constitution that requires the legislature to promote education in various subjects “by all suitable means,” which could include the savings accounts, Komer said. “That is a broad-based assignment to the legislature of the power to support education. It’s not limited to the fact that in [another section] they say the legislature shall provide for a uniform system of common schools,” he said.
It’s important to remember that the education savings accounts can go to costs at public schools, too, said Jonathan Butcher, education director at the Goldwater Institute.
“There’s no argument that is persuasive that suggests, well, if we let some students make a decision for themselves that we are going to hurt the whole system. There’s just nothing persuasive about that,” he said.
The ACLU lawsuit was filed a week ahead of a decision by the Washington state Supreme Court,that charter schools there violate a constitutional requirement for “common schools” because they’re publicly funded but privately governed, the Seattle Times reported.
Whatever the arguments in Nevada, the fight is far from over. The ACLU is set to file a motion for an injunction to stop the program immediately, and the Institute of Justice will file a motion to intercede on behalf of the state. Both sides said they expect the case to eventually reach the Nevada Supreme Court.
Gov. Brian Sandoval, who strongly supports the program, urged the state’s attorney general to seek an expedited hearing and final decision by the state Supreme Court. Nevada’s Republican-led legislature, with Sandoval’s support, passed the education savings accounts earlier this summer as part of a broad package of education reforms aimed at boosting Nevada’s floundering schools, by most measures among the worst in the nation.
“It is clear that parents want the freedom to choose the best school to meet the needs of their students,” Sandoval said in a statement. “The uncertainty and legal gridlock created by this lawsuit will significantly impact student success.”
Nevada Gov. Brian Sandoval photo by Getty Images
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