ESA ruling wise, but far from final

No one expressed much surprise at Monday's news that a Carson City judge had issued an injunction blocking Nevada's new education savings account law from going into effect.

That's not to say there wasn't some disappointment, however. The program — which diverts the state portion of school funds into private accounts for parents to use on expenses such as books, tutoring, tuition at private schools and the like — was supposed to go into effect next month.

But now, it's in limbo, after First Judicial District Court Judge James Wilson said some aspects of the law violate the Nevada Constitution. Attorney General Adam Laxalt will almost certainly appeal the injunction ruling to the Nevada Supreme Court.

Until that happens, however, here's a few things to keep in mind.

This is far from the final word. The ruling issued Monday has only to do with a preliminary injunction. To get one of those, a plaintiff has to show that he or she has a reasonable chance of winning the case, and that imminent harm will result if an injunction isn't issued.

Wilson found that the plaintiffs, a group of Nevada parents, had demonstrated a reasonable chance of success on one of their main arguments, that the law that created ESAs would divert some of the state's general fund dollars away from public schools. That, Wilson said, violates the state constitution's requirement that the Legislature appropriate general-fund money to support public schools. And, he noted, the Legislature knew this full well, because lawmakers had to amend a state law that prohibits public school money from being diverted to any other purposes in order to pass ESAs in the first place!

But the flaw identified in Monday's ruling can be fixed. Monday's ruling certainly isn't the end of ESAs, however. Even assuming the state Supreme Court agrees with Wilson, the Legislature could, for example, create a separate fund for ESAs outside the state's school budget. Paying for ESAs out of that fund may not impinge on the constitutional protection afforded education funds.

That assumes, of course, the ultimate failure of another argument made by the plaintiffs — that ESAs violate a section of the Nevada Constitution that requires the Legislature to create a "uniform system of common schools." Because private schools aren't subject to the same rules that govern public education, devoting state money to them via ESAs violates the constitution, the plaintiffs contended. Wilson found that argument didn't justify an injunction, but that doesn't mean it won't ultimately prevail when a trial is finally held.

Practically, this was the most prudent course. Wilson found an injunction was appropriate as a matter of law. But it's also wise from a practical perspective. Let's assume the program went into effect as scheduled next month and money started flowing into ESA accounts. But then, six or nine months from now, the program was ruled unconstitutional, and the accounts were closed. If there is even a chance the program is unconstitutionally flawed, it's better to disappoint parents now before it goes into effect than to yank it away once money had already begun to flow.

It's still remarkable, however, how quickly ESAs have morphed from an idea to a full-blown entitlement program. Laxalt, commenting on Wilson's ruling, tellingly used that exact phrase: "We are reviewing the order with respect to the third claim and considering our legal options to ensure that Nevada's parents receive the educational funds they are entitled to," he said in a statement.

Don't forget the other lawsuits. An entirely separate lawsuit that contends the ESA program violates a state constitutional ban on school money being used for a "sectarian purpose" is still pending. And then there's Lt. Gov. Mark Hutchison's attempt to get a more permanent ruling by asking a court to declare the program constitutional outright. There's a long way to go before ESAs are a settled matter.

— Steve Sebelius is a Review-Journal political columnist and co-host of the show "PoliticsNOW," airing at 5:30 p.m. Sundays on 8NewsNow. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.