CARSON CITY — The Nevada Supreme Court on Thursday struck down the state’s education savings account law, ruling that
while the premise of using taxpayer money for private education was constitutional, the method used to fund the ESA program
was not.
The high court ordered a permanent injunction against the law — viewed as the most sweeping school choice legislation in the
country — that was passed last year on a party-line vote by the Republican-controlled Legislature.
GOP legislators who had championed the law pledged to establish a separate funding account and called for Gov. Brian Sandoval
to include the ESA program on the agenda for an anticipated special session next month. That session, which Sandoval is expected
to convene between Oct. 7 and Oct. 13, already was set to consider financing for a stadium in Clark County and an expansion of
the Las Vegas Convention Center.
But late Thursday the Republican governor signaled the issue of funding ESAs should be addressed by the 2017 Legislature when
it convenes in February.
“Although the court found the current funding mechanism for Education Savings Accounts unconstitutional, there may be a path
for a legislative solution,” Sandoval said. “However, such a solution is complex and must be well thought out to meet
constitutional muster.
“I am still reviewing the full decision … and it would be premature to speculate on the proper method to administer and fund
this important program,” he said. “I also believe it is important to consult with legislative leadership on this issue as we approach
the 2017 legislative session.”
In its 33-page opinion, the court held that the Nevada Constitution does not limit the Legislature’s discretion to encourage other
methods of education. Additionally, it said funds placed in education savings accounts belong to parents and are not “public
funds,” therefore ESAs do not violate a prohibition against using public money for sectarian purposes.
But justices said lawmakers cannot divert money authorized specifically for public schools to be used for private educational
programs such as tuition at parochial schools. The use of Distributive School Account funding for ESAs “undermines the
constitutional mandates“ to fund public education, the court said.
Chief Justice Ron Parraguirre and Justices Mark Gibbons and Kristina Pickering concurred with the majority opinion authored by
Justice James Hardesty.
Justices Michael Cherry and Michael Douglas issued a separate two-page opinion. They agreed with the overall ruling, but
dissented in the conclusion that funds for ESAs are not public and argued that issue required further lower court proceedings to
determine.
Both sides in the cases claimed the ruling as a victory.
Nevada Attorney General Adam Laxalt hailed the opinion as “a landmark win” that can be fixed by setting up a separate funding
account for the program.
“Fortunately, the Supreme Court has made crystal clear that ESAs are constitutional and that the Legislature can fix this funding
technicality and allow for the implementation of ESAs statewide,” he said.
State Sen. Scott Hammond, the architect of the ESA legislation, expressed disappointment in the ruling but said it was based “on a
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narrow technical ground that can be easily corrected through legislation.”