ESAs aren’t dead, but still mired in limbo

Nevada’s education savings accounts program has been in limbo virtually from the moment the 2015 Legislature approved it on a party-line vote.

(ESAs, as they’re known, allow parents to establish individual accounts to use state education dollars for anything from books to tutoring to charter or private school tuition.)

First, there were the lawsuits filed against the law, alleging it improperly diverted money meant for public schools and improperly spent money on sectarian religious instruction.

Second, there was the Nevada Supreme Court ruling in late September holding that the program was constitutionally sound, but that the method the Legislature used to fund the accounts was unconstitutional.

Opponents insisted the program was dead and buried, but that simply wasn’t true. In fact, the court’s ruling was essentially a road map guiding the way for lawmakers to ensure the program passed constitutional muster. But Gov. Brian Sandoval declined to put the ESA issue before the Legislature during the October special session on the NFL stadium. That was a risk for Sandoval, because a Republican legislative majority elected in 2014 was unlikely to survive the 2016 elections. Sure enough, November’s vote put Democrats in charge of both houses.

But earlier this month, state Treasurer Dan Schwartz — one of the state’s foremost ESA advocates, whose office oversees the program — asked the attorney general’s office for its position on the issue.

In a two-paragraph email to Deputy Treasurer Grant Hewitt, the state’s deputy solicitor general, Joseph Tartakovsky, wrote that the program remains valid, except that its funding cannot be taken from the state’s school budget.

“We are of the opinion that nothing in the decision prevents you from continuing to administer the ESA program, so long as no funds are drawn from the Distributive School Account under Section 16,” Tartakovsky wrote. “The Court’s decision was narrow. … It held, instead, that SB 515 did not ‘appropriate any money to fund’ the program, and therefore enjoined only the portion of SB 302 that funded the ESA program from [the state’s schools budget] funds appropriated by SB 515. The program remains on the books and is an expression of the Legislature’s will to have such a program.”

And that’s absolutely correct: Despite the fond hopes of opponents, ESAs are not dead, provided the Legislature funds them properly. So it makes sense that Schwartz may continue to process applications submitted under the ESA program.

But that’s not the same thing as saying parents will actually be able to start using ESAs to pay for educational expenses. That won’t happen until the Legislature meets again and decides how (or if) to pay for the accounts.

If the Democrats who are now in charge in Carson City decide to keep ESAs, they will have to establish a funding source separate from the usual schools budget for the program. That would be consistent with the Supreme Court’s ruling and allow parents to take advantage of this opportunity.

On the other hand, Democrats could just as easily decide to kill it. (None of them voted for it in 2015, and many have said the program is either an attack upon or an abandonment of the public school system.) But that course entails political risk: Thousands of families have signed up and Sandoval has pledged to make ESAs a priority in his 2017 legislative agenda.

Schwartz’s request and Tartakovsky’s response may be a way of putting pressure on majority Democrats to preserve the program.

As for now, however, the ESA plan remains mired in limbo, the same place it’s spent most of its short life. Whether it can be sprung remains a political question.

Steve Sebelius is a Review-Journal political columnist. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.