Nevada Court Strikes Down School Choice Law, But Defends Its Constitutionality


The Nevada Supreme Court sent mixed messages in its rejection of what is considered the nation’s broadest school choice program, ruling that the fundamentals of Education Savings Account (ESA) are constitutionally sound, but that its funding mechanism illegally draws from public school coffers.

Justices issued a 4–2 ruling on Thursday striking down the program, which has never disbursed funds to families as it intended due to ongoing legal challenges.

Proponents framed the ruling as a victory, saying it agreed with their core arguments and adding that its defects can be fixed by the Legislature.

“After today’s ruling, there is only one step left to take in order to make the vision of educational choice a reality for thousands of Nevada families,” said Nevada Attorney General Adam Laxalt. “Fortunately, the Supreme Court has made crystal clear that ESAs are constitutional and that the Legislature can fix this funding technicality and allow for the implementation of ESAs statewide.”

Opponents celebrated the law’s latest stumbling block. Rory Reid, president of the Nevada-based Rogers Foundation, which supported legal challenges against the program, said that with the present ruling in place, “taxpayer money isn’t to be used to support the private education of a handful of kids.”

The ruling says the program did not have its own dedicated funding source and is contradicting the Nevada Constitution by drawing on money allocated for public schools in the state’s Distributive School Account.

Nevertheless, justices affirmed that public money transferred to accounts for parents’ discretion are no longer “public funds” that would be prevented from use for sectarian purposes, such as religious schools.

Rabbi Mendy Levine, executive director of the Yeshiva Day School of Las Vegas, who testified in several committee hearings during the bill’s journey, was confident that a minor legislative adjustment would ultimately save ESA.

“It should really be quite simple to fix,” he told Hamodia. “All the justices agreed that if there would be a separate account that does not pull from the public schools, ESA would be fine.”

Following the decision, Rabbi Levine said that he had already contacted the bill’s original sponsor, State Senator Scott Hammond, to encourage him to use an upcoming special session of the state legislature to pass a revised version of the law.

ESA passed Nevada’s Republican-controlled legislature in 2015, with votes split largely along party lines. The situation makes the bill’s supporters all the more anxious to pass a revamped law before elections could give Democrats greater power in the state.

The Becket Fund for Religious Liberty submitted one of many amicus briefs in favor of the program, focusing on the fact that the suit brought by the ACLU and Americans United for Separation of Church and State is rooted in Nevada’s “Blaine amendment,” a regulation 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.

“From a religious liberty perspective, this is a victory,” Becket attorney Mark Rienzi told Hamodia. “Plaintiffs tried to use this bigoted amendment to strike down ESA, and the court rejected that. The important question here was, “Is this program constitutional?” — and, to that, the justices clearly said, “Yes, it is.” The funding issue that they rejected it on seems hardly insurmountable. If the people of Nevada say that they want this program, the court said they can have it.”

The ESA program calls for the state to deposit 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.

Since its passing, it has become the target of two lawsuits. One challenged the redirecting of funds ostensibly designated for public school coffers. A second suit challenged 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 by Nevada’s Supreme Court in late July.

ESA accounts have become a rallying point for conservatives, who say they will help parents afford school options that better fit their children’s 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 Associated Press.