Nevada’s Supreme Court put ESAs on hold, but theres a big silver lining

Commentary

Nevada’s Supreme Court put ESAs on hold, but theres a big silver lining

Today, the Nevada Supreme Court issued a permanent injunction against the state’s Education Savings Account (ESA) program. Nevada’s ESA law, passed in 2015, was the nation’s largest victory for private school choice to date. The program offered near universal eligibility, granting more than 450,000 students’ families access to tax-free accounts for educational purposes. Even more powerful than vouchers, families can spend ESAs on a huge array of expenses, from tuition, to tutoring, to software like Rosetta Stone, or even therapy for special needs students.

Many local outlets are suggesting that Nevada struck down the ESA program, but things are sunnier for school choice supporters than headlines suggest. The Nevada Supreme Court actually upheld the constitutionality of the program itself. In its opinion, the court wrote that “the ESA it is not contrary to the Legislature’s duty under Article 11, Section 2 to provide for a uniform system of common schools.” The court also agreed that ESA funds, eligible for use at religious schools among other options, had an “educational” rather than “sectarian” purpose overall. The court also held that once the public funds allotted for ESAs rest in participating parents’ accounts, they become the parents’ private dollars to spend. Therefore “any decision by the parent to use the funds in his or her account to pay tuition at a religious school does not involve the use of ‘public funds.'” Calling ESAs “sectarian” because some participating parents choose religious schools is a favorite accusation of many school choice opponents, whether teachers unions or the ACLU. The court firmly siding with Nevada ESA supporters here fundamentally secures the constitutional future of the program, provided it can be implemented satisfactorily.

The only real issue the court had with the program was how it was funded. Nevada’s ESA use money from the state’s public education general fund to fill parents’ accounts. However, the court ruled that because Nevada’s ESA did not appropriate money from a separate source, using money intended for K-12 public education to fund ESAs instead “undermines the constitutional mandates” for public education in Nevada. Therefore, the court issued a permanent injunction, barring the state from issuing funds for the ESAs. Luckily for Nevada, funding ESAs such that they pass constitutional muster should be an easy enough task.

Unlike Washington State, whose legislature had to scramble to fund charter schools with lottery money after the State Supreme Court banned them from receiving general fund money, Nevada has a simpler solution. The state can still fill ESA accounts using the general fund, it just can’t use those parts of it already slated for public education. All Nevada has to do is create a specific fund to support the ESA program that draws from the state’s general fund-let’s call it a “Choice Education Fund”-separate from the dollars already going to “public education.” Each year, unused dollars from the “choice” and “public education” pots could then revert back to the general fund for future use, leaving the ESA program in place and free from legal threats.

The court’s ruling on funding brings up a larger paradigm shift school choice advocates still need to work towards. If we define “public education” as education available to every child, why should we conceive of it as coming exclusively from government sources? If we’re going to spend public money to support all students having an education in the first place, why shouldn’t they be able to be use it at a variety of schools, whether traditional public, public charter, or private? Separating the funding source from the provider shouldn’t be seen as “undermining” public education. Luckily for Nevada, legally secure large-scale private school choice could be just one bill away.

Tyler Koteskey was an education policy analyst at Reason Foundation, a non-profit think tank advancing free minds and free markets.