ELY TIMES: High court should follow judge’s rationale for upholding ESA program

The Nevada Supreme Court could save itself a lot of time and effort by just cutting and pasting a Clark County judge’s 45-page ruling this past week on the constitutionality of the state’s education savings account (ESA) law.

Though Court Judge Eric Johnson’s decision dismissed an American Civil Liberties Union suit that claimed the law violates the state Constitution’s prohibition against funding sectarian institutions because parents could spend the savings at religious-based private schools, he also addressed the crux of another case that is pending before the Supreme Court.

In that case — Schwartz v. Lopez — plaintiffs argue that money set aside for public schools funding may not be used for any other purpose.

The Legislature in 2015 set statewide public education funding at $5,710 per pupil in the Distributive School Account (DSA). The ESA bill dictated that most parents who pull their children from public school would be given 90 percent of that amount to fund education by whatever means they choose — private school, tutoring, homeschooling — thus reducing the public school enrollment and the needed funding.

Judge Johnson, writing on the religious separation argument, said, “The United States Supreme Court’s ‘decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools, and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.’ … Where a school aid program, such as the ESA program, is neutral with respect to religion, and provides assistance available directly to a wide spectrum of citizens, or as in this case, essentially all parents of Nevada school children, who, in turn, direct the financial assistance to religion affiliated schools ‘wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge …’”

The judge also addressed and dismissed many of the financing issues raised in the Schwartz v. Lopez case pending before the Supreme Court, writing that “even if large numbers of parents enroll in the program, so long as there is a ‘uniform public school system,’ open to the ‘general attendance’ of all, the Legislature has fulfilled the duty imposed …”

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