After enacting the most expansive and innovative school choice program in the nation Nevada’s Education Saving Account (ESA) Program was immediately challenged in court. The program allows any student who has attended a public school for at least 100 days to receive a flexible, $5,000 grant from the state to be used for educational expenses. The funds deposited in the ESA may be used to pay for any mix of private and online school tuition, tutoring services, transportation and curriculum for home education, among other things. The wide array of permissible expenditures allows parents to genuinely personalize their child’s education.
Institute for Justice (IJ) defended the program on behalf of parents from five families, whose children are eligible to receive ESAs.
On September 29, 2016, the Nevada Supreme Court ruled that the Legislature would have to fix a funding technicality but that program itself was completely constitutional. The Supreme Court rejected claims that the program violated the state constitution’s prohibition against using “public funds…for sectarian purposes” and that it violated the Legislature’s duty to provide for a “uniform system of common schools.” IJ’s participation in the lawsuit paved a clear legal path for Nevada to extend school choice to all of its children.
Motion to Intervene
Nevada School Choice Frequently Asked Questions
Is Nevada’s School Choice Program a “Voucher” Program?
No, Nevada’s school choice program is not a voucher. Rather, it is an education savings account, or ESA, program. A voucher is a grant or scholarship from the state, usually in the form of a check or warrant, which parents may use to pay for private school tuition—and nothing else. An ESA program, on the other hand, allows parents to spend the money deposited in their student’s account on a variety of goods and service and, therefore, does not even require that parents enroll their students in a private school.
What is an Education Savings Account (ESA) Program?
Education savings account programs enable parents to customize their child’s education in ways beyond just enrolling them in private schools. Children who are eligible for an ESA receive a portion of their state educational dollars deposited in a separate savings account that is controlled by parents. Parents are then empowered to spend those funds on a wide variety of educational goods and services, including tutors, materials to educate their students at home, specialized services such as speech and occupational therapy, and private school tuition, and in some states parents may even save ESA funds for future college expenses.
Does the ESA Program Pass Constitutional Muster?
IJ worked closely with the Nevada Legislature throughout the drafting process to ensure the ESA Program is constitutional. Under the ESA Program, not one dollar is predestined for any particular type of institution. Rather, parents have a free choice as to where they spend the educational dollars deposited in their child’s ESA. Moreover, the program does not require any student to be enrolled in a private school, much less a “sectarian” private school. And if parents do decide to use the funds deposited in their student’s education savings account to pay for tuition at a religious school, those funds are used to purchase an education—not for any sectarian purpose. The ESA Program is perfectly consistent with the plain language of the Nevada Constitution.
What is the basis of the ACLU’s lawsuit challenging Nevada’s ESA Program?
The plaintiffs represented by the ACLU who are challenging the ESA Program claim that the program violates two separate provisions of the state constitution.
First, they argue that the ESA Program violates Nevada’s Blaine Amendment, which states that, “[n]o public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.” Nev. Const. art. XI, § 10. This provision, by its plain language, simply does not apply to publicly funded educational assistance programs like Nevada’s ESA Program. Rather, the provision plainly deals with government actors. It simply does not constrain the private choices of private individuals. From the perspective of the state, the funds deposited in an ESA are restricted for one use and one use only—education.
Second, the plaintiffs argue that the ESA Program violates the legislature’s obligation to provide for a uniform system of public schools. The Nevada Constitution, Article XI, § 2 states, “[t]he legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year, and any school district which shall allow instruction of a sectarian character therein may be deprived of its proportion of the interest of the public school fund during such neglect or infraction, and the legislature may pass such laws as will tend to secure a general attendance of the children in each school district upon said public schools.” Nothing in the ESA Program undermines the state’s duty to provide for a uniform system of public schools. Just like other Nevada education laws and programs, such as those authorizing charter and magnet schools, the ESA Program merely offers parents additional options for their children’s education. The ESA Program is simply a recognition that there is no one-size-fits-all approach to educating students.
What is the basis of the ELC’s lawsuit challenging the ESA Program?
The ELC’s lawsuit is a more elaborate version of the second argument advanced by the ACLU.
The plaintiffs in the ELC lawsuit believe that the ESA Program violates sections 2, 3, and 6 of Article XI of the Nevada Constitution. Section 2, as discussed above, requires the Legislature to “provide for a uniform system of common schools.” Section 3 pledges money derived from federal land grants, as well as fines collected by the State under Nevada’s penal laws, to “educational purposes,” saying that such money cannot be diverted for any other purpose. And finally, section 6 provides that the public schools shall be supported by “one or more appropriations to provide the money the Legislature deems to be sufficient.”
According to the ELC, these provisions in Article XI restrict the Legislature’s ability to spend education funds on anything other than public schools. They allege that “the Legislature’s appropriations for the maintenance and support of Nevada’s uniform system of public schools must be used to fund the operation of the public schools, and the public schools alone.” But this stretches the language of the Nevada Constitution, which does not say that the Legislature may not enact educational choice programs on top of its funding for public schools. The ELC’s argument is mistaken, and that is why IJ will defend against it vigorously.
Why does IJ refer to Article XI, section 10 of the Nevada Constitution as a “Blaine” Amendment?
The Nevada Constitution’s Article 11, section 10 is a classic Blaine Amendment. Blaine Amendments are named after former Speaker of the U.S. House of Representatives and U.S. Senator James G. Blaine, who proposed an amendment to the federal constitution in 1876 to prohibit states from appropriating public money to “sectarian” schools. See Richard D. Komer, School Choice and State Constitutions’ Religion Clauses, Journal of School Choice, Vol. 3, No. 4, 2009. Blaine was seeking the Republican nomination for president at a time of great hostility to the growing Catholic population, which was demanding a share of the public school funds for their parochial schools. Catholics wanted their own, separate schools because at that time the public schools were non-denominationally Protestant, rather than the thoroughly secular institutions we are familiar with today, and were quite inhospitable to Catholics.
Although Blaine’s amendment narrowly failed to garner sufficient votes to send it to the states for possible ratification (it passed the House but fell two votes short in the Senate), a number of states (including Nevada) adopted similar state constitutional language. Indeed, Nevada’s Blaine Amendment was proposed in 1877 and ratified three years later, in 1880. This is why the language of Nevada’s Blaine Amendment speaks in terms of prohibiting aid for “sectarian” purposes.
The term “sectarian” was widely understood to be synonymous with “Catholic” and was used by the public to refer obliquely to Catholic institutions. Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality op.) (“Consideration of the [Blaine] amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic.’”). In short, the language of Article 11, section 10 was designed to prohibit institutional aid of the sort the Catholic Church was seeking for its parochial school system.
Has the Nevada Supreme Court previously interpreted Nevada’s Blaine Amendment?
The Supreme Court of Nevada has discussed the Blaine Amendment only once, in an 1882 decision striking down a direct appropriation of state funds to a Catholic orphanage. State v. Hallock, 16 Nev. 373 (1882). Hallock does not address whether the Blaine Amendment prohibits individuals who receive public funds from freely choosing to spend those funds at a private religious institution. The most it says is that “public funds [may] not be used, directly or indirectly, for the building up of any sect.” Id. at 387. No more recent constitutional interpretations exist, let alone any addressing programs aiding students. Standing alone, the Hallock decision does not bar the ESA Program, because it aids parents who choose among a wide array of educational options.
Why Is IJ Committed To Defending Educational Choice?
There has not been a single day since IJ opened its doors that we have not been defending an educational choice program in court. This is because the U.S. Constitution protects parental liberty. This liberty includes the freedom to choose the educational setting that parents believe will best serve their children. As the U.S. Supreme Court explained in the 1925 case Pierce v. Society of Sisters, “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Parents know better than bureaucrats which educational environment best suits their children’s needs.
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