High court should follow judge?s rationale for upholding ESA program

The Nevada Supreme Court?could save itself a lot of time?and effort by just cutting and?pasting a Clark County judge?s?45-page ruling this past week on the?constitutionality of the state?s education?savings account (ESA) law.

Though Court Judge Eric Johnson?s?decision dismissed an American Civil?Liberties Union suit that claimed the?law violates the state Constitution?s prohibition against funding sectarian institutions because parents could spend?the savings at religious-based private?schools, he also addressed the crux of?another case that is pending before the?Supreme Court.

In that case ? Schwartz v. Lopez ??plaintiffs argue that money set aside for?public schools funding may not be used?for any other purpose.

The Legislature in 2015 set statewide?public education funding at $5,710 per ?pupil in the Distributive School Account (DSA). The ESA bill dictated that?most parents who pull their children?from public school would be given 90?percent of that amount to fund education by whatever means they choose?? private school, tutoring, homeschooling ? thus reducing the public school?enrollment and the needed funding.

Judge Johnson, writing on the religious separation argument, said,??The United States Supreme Court?s??decisions have drawn a consistent?distinction between government?programs that provide aid directly to?religious schools, and programs of true?private choice, in which government?aid reaches religious schools only as a?result of the genuine and independent?choices of private individuals.? … Where?a school aid program, such as the ESA?program, is neutral with respect to religion, and provides assistance available directly to a wide spectrum of citizens,?or as in this case, essentially all parents?of Nevada school children, who, in?turn, direct the financial assistance to?religion affiliated schools ?wholly as a?result of their own genuine and independent private choice, the program is?not readily subject to challenge …??

The judge also addressed and dismissed many of the financing issues?raised in the Schwartz v. Lopez case?pending before the Supreme Court, writing that ?even if large numbers of parents?enroll in the program, so long as there is?a ?uniform public school system,? open to?the ?general attendance? of all, the Legislature has fulfilled the duty imposed …?

According to Attorney General Adam?Laxalt, whose office represents the state?in seeking to have the ESA law upheld,?6,000 students have applied under the?ESA program, which is on hold pending the outcome of legal challenges.

?This is a huge and important step?in getting certainty for the thousands?of families waiting to participate in?Nevada?s ESA program,? said Laxalt of?Johnson?s ruling. ?The Court correctly?dismissed these speculative and tenuous claims. The decision today clears?the way for the Nevada Supreme Court?to meaningfully address the remaining?uncertainty caused by the injunction?in the other case challenging Nevada?s?ESA program. We are one giant step?closer to helping thousands of Nevada?families choose the best educational?option for their children.?

The ACLU is considering whether?to appeal, according to the Las Vegas?newspaper.

The judge?s ruling repeatedly emphasized that the state Constitution instructs?lawmakers to encourage education by??all suitable means,? which is in addition?to the requirement to ?provide for a uniform system of common schools.?

Johnson also noted that the plaintiffs?alleged that certain schools might illegally discriminate in admissions and hiring. If that is the case, he stated litigation?could be brought when that happens.

?Whether illegal discrimination occurs?and a school may participate under the?program can be dealt with in the specific?context of the facts of an actual controversy rather than in the hypothetical,? he?wrote twice in the ruling.

Gov. Brian Sandoval released a statement saying, ?Today?s decision by Judge?Johnson is a victory for thousands of?Nevada families who are pursuing the?opportunity to choose the best education path for their children. School?choice was an important part of the?legislative education reform package?enacted in 2015. I hope that all pending litigation challenging these critical?reforms will soon be resolved for the?sake of our students who deserve every?opportunity to succeed.?

Laxalt has informed the Supreme?Court that the first quarterly ESA?payment for the coming school year is?scheduled for Aug. 1, but in order for?the Treasurer to do all the necessary?paperwork, he needs a favorable court?ruling lifting the Schwartz v. Lopez?injunction by July 8.

The Supreme Court needs to rule on?these lawsuits as soon as possible so?thousands of parents and children can?be released from limbo and get on with?their education. ? TM