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

Special Education Webinar Reading, Dyslexia, and Equity: Best Practices for Addressing a Threefold Challenge
Learn about proven strategies for instruction and intervention that support students with dyslexia.
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
School & District Management Webinar
Leading Systemic Redesign: Strategies from the Field
Learn how your school community can work together to redesign the school system, reengineer instruction, & co-author personalized learning.
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
Personalized Learning Webinar
No Time to Waste: Individualized Instruction Will Drive Change
Targeted support and intervention can boost student achievement. Join us to explore tutoring’s role in accelerating the turnaround. 
Content provided by Varsity Tutors for Schools

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 Won't Take Up Cases Seen as Expanding Schools' Liability for Sexual Harassment
The court rejected appeals from a school district and university about when educational institutions may be sued for sexual harassment.
4 min read
Thunder storm sky over the United States Supreme Court building in Washington DC.
iStock/Getty Images Plus
Law & Courts Georgia Educators Plan to Sue Over the State's 'Divisive Concepts' Law
Georgia's could be the sixth lawsuit to challenge state laws limiting classroom discussion of race and racism.
3 min read
Image of a pending lawsuit.
gesrey/iStock/Getty
Law & Courts As a Skeptical Supreme Court Weighs Race in College Admissions, 'Brown' Looms Large
The cases heard Monday involve Harvard and the University of North Carolina, but a decision could be felt in K-12 education.
8 min read
Members of the NAACP Youth and College division rally outside the U.S. Supreme Court as justices heard oral arguments on two cases on whether colleges and universities can continue to consider race as a factor in admissions decisions Oct. 31, 2022.
Members of the NAACP Youth and College division rally outside the U.S. Supreme Court as justices hear oral arguments on whether colleges and universities can continue to consider race as a factor in admissions.
Francis Chung/E&E News/POLITICO via AP Images
Law & Courts 4 Things to Know About the Affirmative Action Showdown Before the Supreme Court
The justices on Monday weigh the use of race in admissions at Harvard and the University of North Carolina, with K-12 implications.
9 min read
supreme court SOC
Getty