Judicial decisions are notoriously hard to translate into accurate news reports: judges often make nuanced and esoteric legal distinctions and frequently what is not said is as important as what is said.
Thursday’s Supreme Court decision, on Nevada’s groundbreaking Education Savings Accounts program, was a perfect example of this. Many Nevadans may have been left with the misimpression that Nevada’s ESA program, to use a phrase from the headlines, was “struck down.” I can assure you that it was not. My office has spent the last year defending the ESA law, so I am in an ideal position to explain what the decision means for Nevada.
The various plaintiffs in two separate ESA cases made two broad challenges to the ESA law’s constitutionality. First, they said that the program unlawfully allowed Nevada’s public money to fund “sectarian” entities like religious schools. Second, they said that the Legislature could only fund education in Nevada through the public schools.
The Supreme Court rejected both arguments. This is not a matter of interpretation or ambiguity, but a black-and-white legal fact. The Court unambiguously declared that there is no constitutional roadblock to Nevada having an ESA program.
As to the first argument, some Plaintiffs argued that even if the Legislature intended the ESA money for educational purposes, parents’ use of the money at schools with religious affiliations somehow tainted it and rendered the whole law unconstitutional. The Nevada Supreme Court instead adopted the commonsense view, as we argued, that it is not the State or the Legislature but the “parent [who] decides where to spend that money for the child’s education.” Some parents may choose religious schools. Some may not. Some may opt to use ESAs to help with homeschooling or tutoring. All are fine. The key is that it is the parents choosing how to use the money, not any state official.
On the second argument, the Court agreed with other states’ high courts that the “legislative duty to maintain a uniform public school system is ‘not a ceiling but a floor upon which the legislature can build additional opportunities for school children.’” Of course the Legislature must fund the public schools. But it is also free to fund other educational opportunities for our children, including ESAs.
My office entered this lawsuit as part of my constitutional duty to defend Nevada law against constitutional attack. That is precisely what my office did over the last year, successfully, and in record time. In other states, major educational-choice cases have taken more than six years to be resolved. Our Supreme Court has made clear there are no constitutional obstacles to having an ESA program in Nevada. The ESA program simply requires funding. The program remains in place, ready to spring into action. The Court essentially found that the Legislature created a lawful ESA program and although the Legislature believed that it had properly funded the program, unfortunately it had not. The bottom line: all legal hurdles to ESAs are cleared.
From here on out, opponents of ESAs can no longer claim that ESAs are unconstitutional in Nevada. This is a huge and historic victory for school choice, for the authors and supporters of this legislation, and most importantly for our children across the State of Nevada—indeed across the nation.
Adam Paul Laxalt is the 33rd Attorney General of the State of Nevada whose office was tasked with defending the ESA law.