ON-Lion Letter
Nevada's sweeping new school-choice program may be constitutional, but families will still have to wait.  In late September, the Nevada Supreme Court issued a consolidated decision in two landmark cases challenging the constitutionality of the nation’s first nearly universal education savings account (ESA) program and declared that the program passes constitutional muster.  However, the Court also held that the Nevada Legislature did not properly fund the program, meaning that a new appropriation will be required before Nevada's ESA program can go into effect.

"The Nevada Supreme Court has unequivocally said that there is no constitutional impediment to fully funding Nevada's ESA program, but unfortunately the Court said that the funding mechanism in the current program cannot be used," said Tim Keller of the Institute for Justice's (IJ) lead attorney defending Nevada’s ESA program.  "The ball is now in the Governor's and Legislature's court to adequately fund the ESA program for thousands of families who have already applied to participate in it."

In its rejection of the ACLU of Nevada's argument that the ESA program unconstitutionally funds sectarian schools, the Nevada Supreme Court said, "It is undisputed that the ESA program has a secular purpose -- that of education -- and that the public funds which the State Treasurer deposits into the education savings accounts are intended to be used for educational, or non-sectarian, purposes.  Thus, in depositing public funds into an education savings account, the State is not using the funds for a 'sectarian purpose.'"

And in refusing to hold that Nevada's constitution precludes the Legislature from funding educational options outside of the public-school system, the Court declared in no uncertain terms that "[t]o accept the narrow reading urged by the plaintiffs would mean that the public school system is the only means by which the Legislature could encourage education in Nevada.  We decline to adopt such a limited interpretation."

"Today's decision is disappointing for our clients and the families in Nevada who need educational alternatives right now," said IJ attorney Keith Diggs.  "However, the silver lining is that the problem identified by the Court is a technical problem that the Legislature can, and should, fix as soon as possible."

The Lynde and Harry Bradley Foundation in Milwaukee substantially supports IJ.
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