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
Student Achievement Webinar
The Relationship Advantage for Attendance, Engagement, and Achievement
Relationship-building goes beyond back-to-school. Get practical ideas from district leaders and educators to strengthen student connections.
School & District Management Webinar EdMarketer Quick Hit: Build Campaigns That Engage K-12 Leaders
We’ll share what’s resonating with Education Week’s K-12 audience based on user behavior across platforms and other proprietary data.
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
Assessment Webinar
Measuring What Matters: How District Leaders Are Redefining Student Assessment
In this panel discussion, district leaders and systems experts will examine the gap between the outcomes we want and the systems in place.
Content provided by Otus

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 Can Public Schools Try to Boost Diversity? Admissions Policies Face a New Test
Challenges to race-neutral methods for selective admissions are continuing.
6 min read
Photo collage of the Supreme Court building with a diverse group of teens superimposed over it.
Collage by Gina Tomko/Education Week + Canva
Law & Courts Trump Says Title IX Excludes Trans Girls. The Supreme Court Could Weigh In Next
It's the flip side of a recent U.S. Supreme Court decision upholding state laws that bar transgender girls.
7 min read
Becky Pepper-Jackson prepares to throw a discus Tuesday, April 7, 2026, at Bridgeport High School in Bridgeport, W.VA.
Becky Pepper-Jackson prepares to throw a discus on April 7, 2026, at Bridgeport High School in Bridgeport, W.Va. Jackson's challenge of a West Virginia law barring transgender girls from girls' athletic teams ended up before the Supreme Court, which upheld the state's law. Now, the court could take on the question of whether Title IX requires that transgender athletes be excluded from teams that match their gender identity.
John Raby/AP
Law & Courts Supreme Court Rejects Appeal Over School's Ban of 'Let's Go Brandon' Sweatshirts
The justices left in place a lower court ruling that schools can ban the phrase over its veiled vulgarity.
1 min read
A spectator wears a Let's Go Brandon shirt in the stands during the first half of the Hula Bowl NCAA college football game, Jan. 15, 2022, in Orlando, Fla.
A spectator wears a Let's Go Brandon shirt in the stands during the first half of the Hula Bowl NCAA college football game, Jan. 15, 2022, in Orlando, Fla.
Phelan M. Ebenhack/AP
Law & Courts Ten Commandments in Classrooms: 'Passive Display' or Part of the Curriculum?
Five states now have laws that require or authorize Ten Commandments displays in public schools.
9 min read
A Ten Commandments poster is seen with boxes of others before they were delivered to local public schools in New Braunfels, Texas, Monday, Nov. 17, 2025.
A Ten Commandments poster is seen with boxes of others before they were delivered to local public schools in New Braunfels, Texas, on Nov. 17, 2025. Texas is one of four states that now require the commandments be displayed in public school classrooms.
Eric Gay/AP