Law & Courts

Nevada High Court Deals Blow to School Choice Program

By Arianna Prothero — October 04, 2016 3 min read
  • Save to favorites
  • Print

Slightly more than a year after Nevada lawmakers enacted a groundbreaking new private school choice program, the state’s Supreme Court has ruled that the way it is funded is unconstitutional.

The program allows parents to pull their children out of public schools and take most of the state funding allocated to individual children with them. They can then spend the money on private school tuition—including religious schools, home-schooling materials, or a variety of other education-related expenses or programs.

The program is unique compared with those in other states in its scope: All public school students are eligible.

Despite the court’s ruling on the funding mechanism, school choice advocates are declaring it a victory, nonetheless, because the high court did not strike down the program on the grounds that it funnels money toward religious schools.

“The court is basically saying, ‘Guys, this is constitutional, you just have to fund it a separate way,’ ” said Robert Enlow, the president and CEO of EdChoice, formerly the Friedman Foundation. The group champions private school choice policies nationally.

For some advocates, what Nevada was practicing represents the truest form of the school choice idea: a customizable education that parents can control down to the last detail. For that reason, many school choice advocacy groups have been watching the Nevada case closely. But whether the program really has a path forward in the state after the court ruling depends on whom you ask.

Unique Program

Only a handful of states have education savings accounts, or ESAs, called that because the money is deposited in accounts from which parents draw to pay for approved education-related expenses.

Of the states that do have an ESA—Arizona, Florida, Mississippi, and Tennessee—their programs are limited to a small number of students, such as those with disabilities or from low-income families. Nevada’s program is open to all public school students, so long as they have been enrolled in a public school for at least 100 days.

Nearly 8,000 students have applied so far, and the state has continued accepting applications, even though the program’s implementation has been on hold under a judge’s order since January.

Two separate lawsuits were filed challenging the constitutionality of the program last year, and the state Supreme Court ruled on both in the same opinion.

The first lawsuit, Duncan v. State, Office of the State Treasurer, was brought by a group of taxpayers challenging the program on the grounds that it unconstitutionally funds religious groups because families can use their education savings accounts to pay for tuition at a religious school.

The other lawsuit, Schwartz v. Lopez, brought by a group of parents, claimed the program was unconstitutional because it uses money expressly set aside for public schools.

In the end, the court took issue with the way the program was funded, ruling it was illegal to take money allocated for public schools.

“It was unlimited, and it was diverting public school dollars toward private expenditures without budgeting for it,” said Tamerlin Godley, a partner with the Los Angeles law firm Munger, Tolles, and Olson. The firm represented the group of parents on a pro bono basis. “It had real potential to do harm to the public schools,” Godley said.

However, the court didn’t see a problem with the other constitutional question put before it: whether the state was unlawfully directing public money to religious institutions.

Several school choice advocates who have been following the case, as well as Nevada’s state treasurer, who manages the program, say that finding a new source of funding is a relatively easy fix for state lawmakers. The state treasurer, Dan Schwartz, is confident enough the program will get funded that he said his office is going to continue accepting applications. But others are skeptical that changing the funding source will be such an easily cleared hurdle.

“The only way they can fund this program would be to reduce public school funding or raise taxes, and I don’t think legislators will do that,” said Tod Story, the executive director of the American Civil Liberties Union of Nevada, which brought the first lawsuit. “I don’t think that voters would be supportive of that—raising taxes to send kids to private schools. That’s what we have public schools for.”

A version of this article appeared in the October 05, 2016 edition of Education Week as Nevada High Court Deals Blow to School Choice Program

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Artificial Intelligence Webinar
Teaching Students to Use Artificial Intelligence Ethically
Ready to embrace AI in your classroom? Join our master class to learn how to use AI as a tool for learning, not a replacement.
Content provided by Solution Tree
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Teaching Webinar
Empowering Students Using Computational Thinking Skills
Empower your students with computational thinking. Learn how to integrate these skills into your teaching and boost student engagement.
Content provided by Project Lead The Way
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
IT Infrastructure & Management Webinar
The Reality of Change: How Embracing and Planning for Change Can Shape Your Edtech Strategy
Promethean edtech experts delve into the reality of tech change and explore how embracing and planning for it can be your most powerful strategy for maximizing ROI.
Content provided by Promethean

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Supreme Court Case on Medical Care for Trans Youth Could Impact School Sports
The justices weigh a Tennessee law that bars certain medical treatments for transgender minors, with school issues bubbling around the case.
8 min read
Transgenders rights supporters rally outside of the Supreme Court, Wednesday, Dec. 4, 2024, in Washington.
Transgender rights supporters rally outside of the U.S. Supreme Court on Dec. 4 as the court weighed a Tennessee law that restricts certain medical treatments for transgender minors.
Jose Luis Magana/AP
Law & Courts How a Supreme Court Case on Vaping Stands to Impact Schools
The U.S. Supreme Court heard an important case about federal regulation of flavored e-cigarettes, which remain a concern for schools.
6 min read
A high school principal displays vaping devices that were confiscated from students in such places as restrooms or hallways at a school in Massachusetts on April 10, 2018.
A high school principal in Massachusetts displays vaping devices that were confiscated from students in restrooms or hallways on April 10, 2018.
Steven Senne/AP
Law & Courts Billions of School Tech Dollars At Risk as Supreme Court Takes Up E-Rate Case
The U.S. Supreme Court will take up a lower-court decision that struck down the funding mechanism for the E-rate school internet program.
3 min read
digital citizenship computer phone 1271520062
solarseven/iStock/Getty
Law & Courts The Uncertainty Ahead for Title IX and Transgender Students in Trump's New Term
Trump may not be able to withdraw the Title IX rule on "Day 1," but advocates on both sides expect it to go away.
7 min read
Marshall University students hold a protest to voice concerns over the handling of Title IX-related issues at the university on Nov. 18, 2022, in Huntington, W.Va.
Marshall University students hold a protest to voice concerns over the handling of Title IX-related issues at the university on Nov. 18, 2022, in Huntington, W.Va.
Sholten Singer/The Herald-Dispatch via AP