What is considered the nation’s broadest school choice program faced its biggest test this past Friday with arguments before Nevada’s Supreme Court. Judges asked pointed questions about the constitutionality of the state’s Education Savings Account (ESA) to both sides, but did not tip their hand in the case that has attracted wide national attention.
“The suits ask the Court to twist Nevada’s Constitution in ways never imagined or intended by our framers. Tomorrow the Supreme Court will address challenges to the constitutionality of the program and allow the voices of the more than 7,000 families eager to participate in this program to be heard,” said Attorney General Adam Laxalt in advance of the hearing.
The ESA program deposits approximately $5,000 each year in a savings account for parents who opt out of a public school education for their child. The funds can be used for educational expenses such as tutoring, therapies, virtual school fees, and private school tuition.
The program is unique in its scale as it applies to more students than any other parallel legislation in other states and places no limit on participation. It passed Nevada’s Republican-controlled legislature in 2015.
Since then, it has become the target of two lawsuits. One challenges the redirecting of funds ostensibly designated for public school coffers. A second suit from the ACLU and Americans United for Separation of Church and State challenges the program’s constitutionality on the grounds that parents are permitted to use the accounts to pay tuition at religious schools. Both arguments were heard on Friday, in two separate cases.
Attorney Paul Clement, who defended the state alongside the Nevada Attorney General’s Office, argued that while money could end up at religious schools, it is the parents who decide it should go there. Clement said that distance is enough of a “circuit break” that the money is no longer public and the state remains neutral.
Mr. Clement served as solicitor general during George W. Bush’s administration and has been mentioned as a possible nominee to the Supreme Court by conservatives.
Richard Katskee of Americans United for Separation of Church and State contended that the state still puts some restrictions on how the funds in their ESA accounts are spent, so the money is still technically public.
Justices questioned the defense, pointing to many religious non-profits that receive public funds.
“This lawsuit follows a long line of misguided attempts to prevent parents from exercising their freedom to choose the best educational environment for their children,” said Agudath Israel of America’s national director of state relations, Rabbi A. D. Motzen, referring to the ACLU suit.
The Becket Fund for Religious Liberty submitted one of many amicus briefs in favor of the program. It focuses on the fact that the ACLU’s challenge is rooted in Nevada’s “Blaine amendment,” found in over 35 states, barring public funds from being used to support religious institutions. The laws are criticized by many for their roots in a wave of anti-Catholic sentiment in the middle and late 19th century.
“This is a law that has its origins in open bigotry, and now it’s being used to prevent low-income parents from deciding what is best for their children,” Becket attorney Diana Verm told Hamodia. She added that if the court refuses to apply the state’s Blaine amendment, it would be a “great precedent” for similar cases.
“This is a case of activists pushing courts to get involved in deciding which religious organizations can and cannot get funding. It is never pretty to have judges digging into the religiosity of a school, and raises all sorts of problems,” she said.
ESA has been on hold and has not yet disbursed any funds, pending legal challenges.
Chief Justice Ron Parraguirre acknowledged that families are anxiously awaiting a decision and promised to carefully consider the arguments. It is unclear when a decision will be issued, but state officials hope to get money flowing to families by November if it comes soon.
“Many of my congregants were excited when the ESA bill passed earlier this year,” said Rabbi Yehoshua Fromowitz of Ahavas Torah Center in Henderson, Nevada. “They are outraged that a civil liberties organization now wants to discriminate against them simply for wishing to use the funds in their savings accounts at a school or educational setting of their choice.”
Rabbi Mendy Levine, executive director of the Yeshiva Day School of Las Vegas, testified in several committee hearings during the bill’s legislative journey. He, together with several members of the Jewish community and students of the local day school, turned out to the court house on Friday as a show of support for ESA.
“[ESA] would have a major effect on our school and could draw a lot of people in,” Rabbi Levine told Hamodia.
He said that demonstrations that were held while the proceedings were in session did not draw more than a few hundred participants, the vast majority in favor of ESA.
“It’s not a very politically engaged state in general,” he said. “If not for the national organizations, the law would never have been challenged in the first place.”
ESA accounts have become a rallying point for Republican legislators, who say it will help children afford school options that better fit their needs. The issue of school choice has attracted increased attention in the current presidential campaign and the movement is praised by presidential candidate Donald Trump. Opponents, typically Democrats, see it as an abandonment of the public school system.
(With reporting by The Associated Press.)
A version of this story appeared in Monday’s daily Hamodia.
Updated Tuesday, August 2, 2016 at 7:34 pm interviews