Judge upholds Nevada’s controversial school choice bill
By NEAL MORTON
LAS VEGAS REVIEW-JOURNAL
LAS VEGAS REVIEW-JOURNAL
A Las Vegas judge on Wednesday
ruled Nevada’s controversial new school choice bill does not violate a
constitutional ban against the use of taxpayer money for religious
purposes.
In
an order dismissing a lawsuit challenging the legislation, District
Judge Eric Johnson upheld the constitutionality of Senate Bill 302 as a
program “neutral with respect to religion” because parents — not state
actors — decide whether they will use an education savings account, or
ESA, to pay for tuition at private and religiously affiliated schools.
Johnson
also ruled a provision in the Nevada Constitution that charges state
lawmakers with encouraging education “by all suitable means” permits the
ESA program in addition to the public school system.
SB
302, passed in the 2015 Nevada Legislature, offers parents about $5,100
in per-pupil state funds to spend on private school tuition, home
school expenses and other educational services if they pull their
children out of a public school.
“The
state has no influence or control over how any parent makes his or her
genuine and independent choice to spend his or her ESA funds,” Johnson
wrote in his decision.
“Parents,
if they choose to use the ESA program, must expend the ESA funds for
secular education goods and services, even if they choose to obtain
those services from religion affiliated schools,” he added.
His ruling does not guarantee parents immediate access to the ESA program because a Carson City judge in January issued an injunction against its implementation in a separate case challenging SB 302.
The Nevada Supreme Court is expected to schedule hearings in an appeal of that case soon.
In a statement, Republican Gov. Brian Sandoval described Johnson’s ruling as a “victory” for Nevada families.
“School
choice was an important part of the legislative education reform
package enacted in 2015,” Sandoval said. “I hope that all pending
litigation challenging these critical reforms will soon be resolved for
the sake of our students who deserve every opportunity to succeed.”
The American Civil Liberties Union of Nevada, which filed the case in Clark County District Court last August, will make a decision on how to react to Johnson’s decision “soon.”
According
to the civil rights advocacy group, 27 of the 48 schools that as of
January applied to participate in the ESA program have a religious
affiliation.
“We are disappointed by the court’s decision,” Amy Rose, legal director for the ACLU of Nevada, said in a statement.
“Nevada’s
voucher program allows private religious schools to use taxpayer
dollars to indoctrinate and discriminate against students on the basis
of religion, sexual orientation, gender identity, disability, and other
grounds,” she added. “Taxpayer funds should not be used for these
discriminatory purposes.”
In
his 45-page order, Johnson first tackled the ACLU’s argument that SB
302 violated a constitutional provision to create a “uniform system of
public schools.”
Johnson
sided with attorneys for the state who countered that the additional
“by all suitable means” provision does not limit the Nevada Legislature
from only encouraging education through the public school system.
“If
the framers (of the constitution) wanted to limit the broad discretion
they accorded the Legislature … they could have easily and should have
clearly stated it,” Johnson wrote.
He
also dismissed the ACLU’s claims that SB 302 would drain critical
resources from public schools and promote discrimination in hiring and
admission decisions at religious schools.
Once
the program is actually implemented, Johnson suggested, those injuries
could occur and provide grounds for a plaintiff to file a new lawsuit.
“Whether
Nevada’s ESA program is wise educational or public policy is not a
consideration germane to the narrow issues of Nevada constitutional law
that are before this court,” Johnson wrote.
“In
the absence of a constitutional violation, the desirability and
efficacy of the ESA program are matters to be resolved through the
political/legislative process.”
Review-Journal staff writer Sandra Chereb contributed to this report
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