Saturday, April 17, 2021

Nev. Supreme Court hears voucher cases


Oral arguments were heard today in two school choice cases that have made their way to the Nevada Supreme Court, and protesters came out. The decisions could have ramifications that reach far outside the state when it comes to voucher programs, the Las Vegas Review-Journal reports.

SB 302, which was signed by Governor Brian Sandoval in June 2015, authorizes the establishment of Education Savings Accounts, or “ESAs,” to pay for private school and other private education expenses with funds that come into the state through taxes. Some people think these funds are earmarked for the public schools of Nevada and call these types of parent-directed expenditures “vouchers,” although that term applies to a broad range of programs that divert money away from public and toward private schools.

Several civil rights groups and people who say they support public education would like the law, scheduled to take effect in January, declared unconstitutional and cancelled. They’d like Nevada’s supreme court to rule that the law violates certain provisions in the state constitution that require the state to maintain a system of public schools for all of Nevada’s children.

As with most states, Nevada has strong constitutional provisions regarding the funds received for public education:

Article 11, Section 9, says, “Sectarian instruction prohibited in common schools and university. No sectarian instruction shall be imparted or tolerated in any school or University that may be established under this Constitution.” Section 10 continues: “No public money to be used for sectarian purposes. No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.”

Because many of the schools that will benefit from the ESAs offer religious education as part of the curriculum, people are opposed to the ESAs if they think teaching religion in schools rather than in the home or in churches or other religious organizations serves neither education nor religion very well.

“Funding religious schools with taxpayer money can violate the consciences of citizens who disagree with their teachings,” said Jennifer Hawks, associate general counsel of the Baptist Joint Committee, who was quoted in The Baptist Standard. “Parents have the right to choose a religious education for their children but not the right to insist that taxpayers pay for it through any type of voucher program.”

The organization filed an amicus brief in this case, asserting that religious liberty is threatened when the government gets involved with religion. Separation of church and state, they note, “recognizes that governmental support for and funding of religion corrodes true belief, makes religious denominations and houses of worship beholden to the state, and places subtle—or not so subtle—coercive pressure on individuals and groups to conform.”

Parents are just looking for relief from the public schools

The vouchers can also be used for home-schooling and help parents purchase curricular materials, examinations, and other education-related supplies or transportation. One of the observed shortcomings of this law is that the possible ways parents can use the more than $5,000 in tax credits they’ll receive are broadly defined. But the state could also be protecting parents from state-imposed restrictions on the type of education they provide for their children, leaving parents, who admittedly know their own kids but may not be well informed about teaching methods, to decide for themselves.

ESA opponents focus on the harm the voucher program will cause for students who are educated in Nevada’s public schools—that is, the ones who don’t take the vouchers and attend a private school or receive home-schooling. Voucher laws in some states impose restrictions on the students who qualify for the tax credits, but Nevada’s law imposes no such restrictions: any student who has been in the state for at least 100 days has access to the funds.

“ESAs in Nevada would apply to 94 percent of all children statewide, so you are going to get a very clear picture of how it impacts educational performance throughout the state,” the Guardian quoted Michael Schaus of the Nevada Policy Research Institute as saying. He apparently thinks public schools will strive to improve themselves as a way of competing for funding. “As a result, you might see other states that have toyed with school choice expand their programs, if they see that this is a success.”

The Southern Poverty Law Center and NAACP filed an amicus brief in the case in opposition to the law. They note the “fast-changing” nature of Nevada’s public school student population and call the court’s attention to the “rapid growth in the number of students overall and the percentage of those students who are in poverty or economically disadvantaged.” This population needs “extra resources,” the groups say, in order to have an equal opportunity to meet the academic standards established by the state.

The ESAs would threaten those extra resources and “deprive Nevada students of critical education resources,” they say, “especially for the growing numbers of at-risk students and [English language learners] requiring additional programs and services.”

Court should issue a ruling limited in scope

Unfortunately, as far as a court is concerned, it should limit its ruling to the constitutionality, not the wisdom, of the law.

Interpreting SB 302 as unconstitutional “would straight-jacket the Legislature and prevent it from doing something this Court has expressly authorized for over a century—namely, spending ‘general fund’ money to encourage education outside the public-school system,” wrote the state’s attorney general in a reply brief.

He said the court should not turn the tax revenue received for education into a “lock box” for just the public schools, for doing so would “impose unwritten, extra-constitutional requirements on the Legislature.” In the past, the court has let stand regulations that use funds that came in for education in order to provide reimbursement of drug-treatment facilities that also operate as private schools, he observed.

I am in the position of agreeing with both sides in this debate. Parents whose sons and daughters feel trapped in poorly run public schools can use some help to provide their children with the education they feel they deserve but that the state is unable to provide, regardless of the reasons the state is unable to provide it.

I don’t believe, however, that parents on their own should be able to order the state’s treasurer to direct tax dollars that people thought were being collected to support the public schools away from those public schools. Doing so may safeguard one parent’s right of free speech, but it denies the free speech of everybody else: that one parent’s voice is all that matters when it comes to the $5,000 expenditure he or she is directing.

This law, however, is penny-wise but pound-foolish. One reason public schools in Nevada are bad is that wealthy people tend not to send their kids to those schools, leaving a ratio of at-risk students that is disproportionately high, compared with the general population in the state. Then, taking money away from those public schools that are required by law to provide an equal opportunity for education to what is a de facto needier population compounds the problem. This issue gets more at the “wisdom” of the law, though, not its strict constitutionality.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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