Institute for Justice · May 19, 2016

Las Vegas, Nev.—In a long‑anticipated ruling, a state trial court judge dismissed one of two lawsuits that seek to dismantle Nevada’s groundbreaking Education Savings Account (ESA) program, which allows parents to use the funds deposited in their student’s ESA on a wide variety of educational options. Judge Eric Johnson, of the Eighth Judicial District Court for Clark County, ruled that the ESA program complies with the Nevada Constitution’s requirement to fund education “by all suitable means,” and further ruled that the program has no unconstitutional “sectarian purpose.” The ruling follows a string of decisions from other states that have upheld school choice programs against similar attacks.

“Today’s decision is a powerful rebuke to the idea that school choice programs undermine education,” said Tim Keller, managing attorney for the Institute for Justice’s Arizona office, “The Nevada ESA program contains both hallmarks of a constitutional school choice program: parents, not the government, decide where their children go to learn, and the government stays entirely neutral with respect to religion.” The Institute for Justice (IJ) represents six Nevada parents who have been approved for ESAs.

ESAs are a cutting edge reform in finding ways to educate a booming population amidst strained state budgets. The ESA program deposits money into accounts controlled by participating parents, who then use it to design a customized education for their children. ESA funds may be used to enroll in private schools, hire tutors, buy textbooks and curricula, and even pick and choose among individual courses at public schools and universities.

“ESAs hand the reins over to parents,” explained Keith Diggs, also an IJ attorney in Arizona. “Kids don’t deserve to be stuck in a school that doesn’t suit them. ESAs will open up a huge array of options and create a market where parents can seek out the education their kids need.”

The ACLU of Nevada and several national groups opposed to school choice brought this case in late August, alleging that the ESA program undermines the public school system and amounts to impermissible state funding of religion. The lawsuit, Duncan v. State, would have asked the court to perform an intrusive investigation into parents’ and educators’ religious beliefs in an effort to obscure the program’s true purpose: educating Nevada children, by Nevada parents’ terms.

“The ESA program does not alter the existence or structure of Nevada’s public school system,” wrote Judge Johnson in dismissing the case. Judge Johnson went on to note that the state provides ESAs only “for educational purposes, and not for any sectarian purpose.” It is now up to Plaintiffs to appeal the dismissal to the Nevada Supreme Court.

“We applaud Judge Johnson’s thoughtful decision and fully expect the Nevada Supreme Court will uphold it on appeal,” said Keller. “Thousands of Nevada parents are counting on ESAs to build their kids a better future, and we hope the ESAs will roll out before the new school year starts this fall.”

Today’s decision does not affect the injunction issued by a different court in January. That case, Lopez v. Schwartz, is currently on appeal at the Nevada Supreme Court.