After nearly three hours of arguments, the Nevada Supreme Court on Friday took both lawsuits over the 2015 Legislature’s vouchers program under submission.
The first to be heard seeks to remove the preliminary injunction preventing state Treasurer Dan Schwartz from issuing $5,000 vouchers to parents who have applied for the Educational Savings Accounts program. That injunction was put in place by Carson District Judge James Wilson who agreed opponents of the program would suffer irreparable damage if the ESAs were funded because the state would have no way of getting the money back if the program was ruled unconstitutional. The second appeal is also on constitutional grounds, arguing public money can’t be used to support religious organizations. Most of the private schools that would get the vouchers are religion based.
Tamerlin Godley argued the program designed to give parents state money to pay private school tuition violates the Education First amendment to Nevada’s Constitution which says the state must fund “public education” before any other state functions.
Public money, she argued, is “for the operation of the public schools only.” The vouchers program, she said, “uses funds appropriated for the operation of the public schools to fund private schools.”
Former U.S. Solicitor General Paul Clement argued the ESAs get around that problem because the money goes to the parents who then decide which school to turn it over to for their children’s tuition costs. He said it’s no longer public money at that point.
But Godley said the funding is controlled by the state at every stage and is released directly from the savings accounts to the school.
Clement said that’s enough of a separation to qualify the vouchers as non-state money. He also argued lawmakers knew when they passed the education funding bill some of the money would be released to private schools through the voucher program.
Godley said the injunction is needed because the voucher checks aren’t the same as per pupil money released to the state’s school districts. If that money isn’t used, the state can get it back, unlike funding that would be in several thousand Educational Savings Accounts. She said the ESA’s legislation was designed to take public money and “divert it out the back door.” That, she said, violates the state constitution.
Clement also handled the treasurer’s side of the second appeal, asking the court to dismiss the constitutional challenge based on language in Nevada’s Constitution that prohibits the use of public money for religious purposes.
As with the first case, he argued “by the time it gets to any religious institution, the funds are no longer public.” He said for the court to rule otherwise, it also would have to cancel numerous other ways in which public money is transferred to religion-based hospitals and even ban religious services in state prisons.
Richard Katskee of Americans United for Separation of Church and State said it’s absolutely state public funds and allowing the money to go to any religion based school would violate the clear language of the constitution. He said that’s not the same as a state worker using his or her Health Savings Account to pay the bills at a catholic hospital because the HAS money is part of employee compensation and no longer state money. He said if the parent chose to pay tuition at a non-religious school, there would be no violation.
He said the vouchers law contains clear restrictions on the use of ESAs: “It isn’t ever the case the state is saying here is some money, go spend it however you want.”
More than 7,000 families have applied for an ESA to help pay for private school tuition for their children.
The seven-member court took both cases under submission.