Education Week - October 5, 2016 - 20

Nevada High Court Deals Blow to School Choice Program
Funding mechanism
ruled unconstitional
By Arianna Prothero
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.

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."

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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,

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Education Week - October 5, 2016

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