Opinion: Lawsuits challenge NV private school voucher program
Nevada’s 2015 legislature passed SB302, a statewide private school voucher program. Under the law, any child who spends at least 100 consecutive days enrolled in a Nevada public school may apply for a direct transfer of public school funds ($5,100 – $5,700 on average) to cover private school tuition and a wide variety of other expenses.
Under the law, the money must be distributed by the state into individual education savings accounts (ESAs), from which the funds may only be used to pay for private school tuition and other expenses. Read SB302 here.
On Aug. 27, 2015, the American Civil Liberties Union, the American Civil Liberties Union of Nevada, and Americans United for Separation of Church and State filed a lawsuit in Nevada’s Eighth Judicial District in Las Vegas challenging the law is filed on behalf of several citizens who assert that the vast majority of Nevada private schools are religious schools that include religious instruction in their programs, and then directly quotes the marketing materials of dozens of such religious private schools in support of that assertion.
The Complaint concludes that the law violates Article XI Section 10 of the Nevada Constitution, which prohibits the use of public funds for any sectarian purpose. The lawsuit also claims that the program runs afoul of Article XI, Section 2, which requires the legislature to provide for a uniform system of common schools. The ACLU Lawsuit has some very capable lawyers behind it.
On Sept. 9, 2015, a second lawsuit, Lopez v. Schwartz, was filed in the First Judicial District Court in Carson City (also a Nevada State Court) challenging the same law by parents and students who are seeking to prevent loss of funding from their children’s public schools to pay for private schools.
The second lawsuit is supported by an advocacy group called Educate Nevada Now (ENN). The ENN Lawsuit likewise has several capable law firms behind it.
ENN’s challenge is based on several different legal grounds than the ACLU Lawsuit. The parents and students in the ENN Lawsuit contend that the voucher law violates the Education Article of the Nevada Constitution.
The stakes involved in the two lawsuits are truly enormous. The financial impact of the voucher program is massive, unpredictable and potentially unlimited.
The two lawsuits and the legal challenges they present to the new law will also put families and students in a state of limbo while the cases play out. The cases will ultimately find their way to the Nevada Supreme Court, which should have the final say in the matter because both cases are solely based on Nevada state statutory law and state constitutional law, not federal law.
My initial reaction is that the two lawsuits present significant and very serious legal challenges to Nevada’s school voucher program. I hope that readers of this blog post will actually take the time to read the complaint in each lawsuit to fully understand the Nevada state constitutional provisions that support the two lawsuits.
I am sure many folks have preexisting beliefs about whether school vouchers are good or bad. Such beliefs really have little bearing on whether the law violates the provisions of the Nevada State Constitution quoted in the lawsuits.
In fact, while many people are well-versed on the text of the United States Constitution, I think most Nevadans have little or no awareness of the content of the Nevada State Constitution and its Article on Education.
To be fair, I have not seen the State’s legal position. In fact, the State has yet to file anything in response to the lawsuits. It is likely that the State will find support for the law in cases from other states upholding private school voucher programs under the other states’ laws.
The Nevada cases will be unique in their legal standing, however, because both the new Nevada law and the Nevada State Constitution are unique.
Nevada families trying to make education choices which rely on the financial support of the voucher program will be extremely frustrated by these legal challenges.
Although the ACLU case poses a legal challenge to religious private schools receiving state money, both lawsuits could impact enrollment in other private schools that have no religious programming while the law is under attack.
As mentioned, the ENN Lawsuit challenges any private school, religious or not, receiving state money.
This will be an interesting case to follow. The stakes could not be any higher.
Andrew N. Wolf is an attorney with the Incline Law Group in Incline Village. Visit inclinelawgroup.com or email him at firstname.lastname@example.org to learn more.