Challenging Nevadas Education Savings Account Holds Back Educations Future

The start of the 2015-2016 school year marks the beginning of revolutionary new educational opportunities for Nevada’s parents and students. The Silver State passed a historic Educational Savings Account (ESA) law this summer. Though five states already have ESAs on the books, Nevada’s is by far the widest-reaching; the first experiment in Friedmanesque “universal school choice.”

The program enables parents of public school students (over 93% of the state’s school-age children) to invest their child’s earmarked education dollars into an account to use for approved education expenses. The options include private school tuition, textbooks, tutors, even a “boutique” style educational mix-and-matching from public and private sources.

Nevada ESAs encourage thriftiness as well. Parents can rollover and save unused ESA dollars, which encourages economizing and maximizing the value of every dollar overtime. Though students with disabilities or low income take all of their education funding with them, the large majority of Nevada’s students will only take 90% of their education funding with them. Therefore, students who use ESAs will mean more per-pupil cash for students who remain in traditional public schools.

Unfortunately, Nevada’s landmark reform is under threat from those who would take away these new choices. The Nevada ACLU launched a lawsuit against the ESA program in August, shortly after it was approved. The lawsuit argues that the ESAs violate state constitutional prohibitions against using “public funds” going toward a “sectarian purpose.”

From the outset, the plaintiffs ignore historical context. The challenger’s case stands on Nevada’s “Blaine Amendment,” an artifact of nativist politics of the late 1800s, a time when “sectarian” meant “Catholic” and the amendments specifically targeted immigrants. The public, or “common” schools of the time were far from the secular institutions of today. Indeed, common schools’ hymn-singing and bible-reading instilled a “pervasively Protestant culture“-part of a Horace Mann-inspired 19th century attempt to create a homogenized national (Protestant) identity among America’s youth.

Context aside, the ACLU’s case is constitutionally precarious. Nevada’s ESA opponents refer to the accounts misleadingly as “vouchers.” As discussed, parents can choose what expense to use the funds on. There’s no stipulation ESA money must go toward private schools, which themselves are not necessarily parochial. And vouchers have only a mixed record of being overturned. The Supreme Court upheld their federal constitutionality under the First Amendment’s Establishment Clause in the 2002 case Zelman v. Simmons-Harris.

Among states with more restrictive Blaine Amendments, the courts are still split. Arizona struck down its voucher program in the 2009 with Cain v. Horne, but Indiana upheld its own in 2013, citing Zelman’s criteria of vouchers having a secular purpose and being given to parents to use.

Education Savings Accounts have a firmer legal track record. When an Arizona teacher’s union challenged the state’s ESAs in 2014, the state supreme court upheld the program, even though Arizona’s Blaine amendment is arguably more restrictive than Nevada’s. The court argued that promoting private schools can itself “properly facilitate a state’s overall educational goals.” The opinion cited parents’ control of the account money, their ability to choose where and how to spend it, and the funds not being “pre-ordained for a particular destination.”

Nevada’s law is a watershed-it’s the first time school choice has been tried on such a scale, and it deserves the chance to show it can work. Nevada’s ESA options are part of the educational future we should be moving towards, not against. An overwhelming majority of Nevadans agree it’s time to give choice a chance. It’s time to empower, not obstruct parents and students in deciding for themselves where to get the best value from their education.