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

Early Childhood K-12 Essentials Forum Early Childhood Education: Building Essential Skills for Success
Join this free virtual event to examine the biggest challenges in supporting young children, from preschool through elementary school. 
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 Absenteeism Webinar
Attendance Isn't an Attendance Problem
Boost attendance by strengthening relationships, belonging, and support with practical strategies from Doug Fisher & Nancy Frey.
Content provided by Corwin
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
The Principal's Role in Collective Efficacy and Student Outcomes
Learn practical strategies that help principals translate their confidence into stronger collective teacher efficacy and student outcomes.
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 Supreme Court Asked to Review Law Requiring Ten Commandments in Public Schools
The case could set a new national standard for religious expression in classrooms.
2 min read
A copy of the Ten Commandments is posted along with other historical documents in a hallway of the Georgia Capitol, Thursday, June 20, 2024, in Atlanta. Civil rights advocates have asked the U.S. Supreme Court to review a Texas law requiring the state’s public schools to display the Ten Commandments.
A copy of the Ten Commandments is posted along with other historical documents in a hallway of the Georgia Capitol, Thursday, June 20, 2024, in Atlanta. Civil rights advocates have asked the U.S. Supreme Court to review a Texas law requiring the state’s public schools to display the Ten Commandments.
John Bazemore/AP
Law & Courts Judge Orders Meta to Build New Child Safeguards. Advocates Hope Other Courts Follow
The new online safety measures would include a monthly time limit and AI chatbot restrictions.
6 min read
Mark Zuckerberg talks about the Orion AR glasses during the Meta Connect conference on Sept. 25, 2024, in Menlo Park, Calif.
Mark Zuckerberg talks about the Orion AR glasses during the Meta Connect conference on Sept. 25, 2024, in Menlo Park, Calif.
Godofredo A. Vasquez/AP Photo
Law & Courts Wisconsin's Appeals Court Overturns Ruling That Had Restored Collective Bargaining Power
Unions are expected to appeal, sending the case to the Wisconsin Supreme Court, which is controlled by liberal justices.
4 min read
FILE - A crowd fills the Wisconsin Capitol rotunda on the fifth day of labor demonstrations, Feb. 16, 2011, in Madison, Wis. Thousands came to protest the governor's proposal to eliminate collective bargaining for most public workers. Seven unions representing teachers and other public workers in Wisconsin filed a lawsuit Thursday, Nov. 30, 2023, attempting to end the state's near-total ban on collective bargaining for most public employees.
A crowd protesting legislation to significantly curb collective bargaining in Wisconsin fills the state Capitol rotunda on the fifth day of labor demonstrations on Feb. 16, 2011, in Madison, Wis. The proposal passed and has been in place for 15 years, and a lawsuit seeking to end it is now headed to the state's high court.
Craig Schreiner/Wisconsin State Journal via AP
Law & Courts What Schools Need to Know About the Supreme Court’s Transgender Sports Ruling
The justices upheld two state laws that bar transgender girls from participating in female sports.
10 min read
A group prays outside of the Supreme Court ahead of the court's ruling on whether transgender girls and women can play on school athletic teams, on June 30, 2026, on Capitol Hill in Washington.
A group prays outside of the U.S. Supreme Court ahead of the court's ruling on whether transgender girls and women can play on school athletic teams, on June 30, 2026, in Washington. The court upheld two state laws barring transgender girls from joining girls' school sports teams.
Jose Luis Magana/AP