Education Savings Accounts Dead But Not Buried
A law that allowed parents to take public education dollars and put them toward tuition at private schools is dead. For now.
The Nevada Supreme Court ordered a permanent injunction against the state’s Education Savings Accounts. The law would have allowed parents to take roughly $5,500 per child from the state’s education budget, and put it toward tuition at a private school.
Almost from the moment it was passed, the law has been held up by lawsuits. The ACLU of Southern Nevada said it was unconstitutional because it violated rules for the separation of church and state.
Educate Nevada Now, backed by the Rogers Foundation, sued because they said it violated the State Constitution because the Constitution requires the state provide a "uniform system of common schools," and that private schools and public schools are not uniform or common.
Both entities also argued that all school money from the state's general fund must go to public schools.
It was the third argument that the High Court agreed with, remanding the decision to a lower court to institute a permanent injunction.
That means Education Savings Accounts are dead. But there is a loophole.
The Court ruled that money from the general fund can only be used for public eduction. But Justice James Hardesty, who wrote the opinion, specifically left open the possibility of funding ESA's through a separate mechanism. Both sides agreed during oral arguments this summer that funding the ESA's differently would be constitutional.
Amy Rose, legal director for the ACLU of Nevada, says that setting up a different funding mechanism just for ESA's isn't as easy as it sounds. The legislature would have to "either establish at tax for private school students or divert money from existing programs." Neither, Rose said, is an easy thing for legisators to do.
"They need to find some sort of revenue source or some sort of funding source that's actually in law," said Riley Snyder, politi-fact checker with KTNV Channel 13 and former Associated Press reporter. "There is no specific line item in the state budget the has to do with ESAs."
Rose dismissed the possibility that legislators would take up the issue during their special session in mid-October, which was called to look at the possibility of funding a stadium for the Raiders football team.
Snyder, too, is skeptical ESA proponents will have an easy hurdle to leap over. "There has to be a set amount of money they're setting aside for this," Snyder said, which means the ESA's being open to anyone could be gone."
And if the legislature doesn't take up the issue in October, it will have to wait till after the November elections. And whether the issue comes to the floor will depend on whether Republicans - who backed the ESA law - or Democrats - who unanimously did not - are in control of the Assembly and Senate.
Meanwhile, the ruling has left 7,000 families in limbo. Those are the families who enrolled their children in private school and applied for the ESA program.
Riley Snyder, KTNV Channel 13 politi-fact checker, former AP reporter