State seeks dismissal of lawsuit against Education Savings Accounts
As thousands of families continue to apply for Nevada's new education savings accounts, a Las Vegas judge next month will decide whether to dismiss a lawsuit challenging the constitutionality of the controversial school choice program.
State Attorney General Adam Laxalt argued in court records filed Monday in Clark County District Court that education savings accounts, or ESAs, do not violate a ban against the use of public funds for religious purposes, even if parents use the program to pay for tuition at a parochial school.
Senate Bill 302, which Gov. Brian Sandoval signed into law in June, allows the state to funnel about $5,000 in per-pupil funding into an ESA if a parent pulls their child out of public schools. Parents can then use the ESA to pay for private school tuition or homeschooling, tutoring and other education services.
In August, the American Civil Liberties Union of Nevada sued to stop the program, claiming the state cannot allow any taxpayer money to flow to a religiously affiliated campus. But Laxalt, with help from former U.S. Solicitor General Paul D. Clement, noted in a motion to dismiss the ACLU lawsuit that SB 302 doesn't even mention religious schools, parochial education, prayer or faith.
"To the extent that ESA funds find their way to religious schools, they do so only through a series of private, individual decisions by the families and students who take part in the program," Laxalt wrote.
"The law contains no requirement that ESA funds be used for sectarian schools," Laxalt added. "And it does not require recipient schools to promote any religious tenets."
As of Friday, the state treasurer's office had received more than 3,500 applications for early enrollment in the ESA program, which goes into effect next year.
In his filing, Laxalt compared a parent's right to choose how and where to spend the ESA funds to a state worker who uses her paycheck for treatment at a religiously affiliated private hospital.
Amy Rose, legal director of the ACLU of Nevada, didn't buy the comparison.
"It's comparing apples to oranges," Rose said. "Using Medicaid at a hospital that happens to be religiously affiliated is completely different.
"They're not providing indoctrination with their medicine," she said, noting many religious schools require prayer and scripture study. "They're not proselytizing while they provide care for a broken arm or operating on a patient."
The national ACLU and Americans United for Separation of Church and State joined the Nevada chapter in its lawsuit, filed on behalf of six local taxpayers. They soon will ask a judge to prevent the state treasurer's office from implementing the ESA program.
In his motion to dismiss, Laxalt argued the taxpayers do not have grounds to sue the state.
He also noted an appeals court in Arizona — which has a more explicit constitutional ban on the use of public funds at private or sectarian schools — upheld that state's ESA program last year.
Clark County District Judge Eric Johnson will consider the motion to dismiss at a Nov. 25 hearing.
Contact Neal Morton at nmorton@reviewjournal.com or 702-383-0279. Find him on Twitter: @nealtmorton
