School grants case nears high court

A Nevada district judge has upheld the constitutionality of Nevada’s program for paying parents to take their children out of public schools.

Judge Eric Johnson said on May 18 that arguments by the American Civil Liberties Union were in avoidance of the issues at hand and ruled that the program does not breach constitutional prohibitions against the use of tax dollars for religious purposes, the thrust of the ACLU suit.

The program is available only to parents who remove their children from public schools. At that point they become eligible for grants in the $5,000 range that can be used for private schools. All the leading private schools in Nevada are religious.

“The state has no influence or control over how any parent makes his or her genuine and independent choice to spend his or her ESA [education saving account] funds,” Johnson’s ruling read.

Those funds, he wrote, are “reserved for educational purposes, and not for any sectarian purpose.”

The ruling still leaves the program far from implementation. If Johnson’s ruling survives the Nevada Supreme Court, there is still a second lawsuit by a group of parents that wields an entirely different legal argument against the program.

The program was enacted in 2015, delayed by various machinations, enjoined by Judge James Wilson on Jan. 11, and so has never taken effect. Democrats have said they will take action against it in the 2017 Nevada Legislature if they win back a majority in the November election.

The Nevada Constitution is highly anti-clerical. Nevadans twice voted to curb spending for religious purposes: “No sectarian instruction shall be imparted or tolerated in any school or University that may be established under this Constitution. … No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.” Another section revokes funds from school districts if they seek to pay for religious instruction. Since last year’s legislature, some supporters of the Nevada program have sought to discredit this language by characterizing it as the product of an era of anti-Catholicism.

Nevertheless, the language is in the constitution. And even without that language, which was added to the constitution a decade after statehood, the original constitution still has plenty of anti-clerical language, the product of a period of anti-Mormonism in Nevada.

The second lawsuit, which likely faces a June hearing, goes at the issue on other grounds than religion. There is constitutional language providing for a “uniform system of common schools” in the state and another, newer section whose inclusion was sponsored by Jim Gibbons in 2003 that says the education budget must be drawn up first during a legislative session, and then cannot be diverted.

In the case of the “common schools” language, lawyers for Educate Nevada Now—the group that obtained the injunction against the program—commissioned historian Michael Green to scrutinize the state constitutional debates and determine what the state’s founders had in mind.

“They were very clear that this education article was all about ensuring a strong public education system that wasn’t controlled by any particular faction,” said ENN attorney Amanda Morgan.

“They wanted a uniform public system where everyone was welcome. … They were very clear that they were worried about a system that was only accessible to the wealthy. And that was really one of their big concerns because at that time, there was a huge movement to make sure there was a common school system in all states.”

According to Reno Gazette-Journal reports, about 80 percent of the people who have applied for the grants under the new Nevada program have median incomes greater than the average median income.

“It almost harkens back to what the founders were worried about,” said Morgan.

Supporters of the new law have pointed to a section of the constitution reading, “The legislature shall encourage by all suitable means the promotion of intellectual, literary, scientific, mining, mechanical, agricultural and moral improvements, and also provide for a superintendent of public instruction and by law prescribe the manner of appointment, term of office and the duties thereof.”

That is very broad, empowering language. But Morgan said it does not empower lawmakers to override companion language in the same document. Laws which breach constitutional restrictions would not be “suitable means.”

“You can create a whole new system and you can divert funds to private schools and you can divert funds to religious schools—that kind of doesn’t make sense with what the founders were saying,” Morgan said.

As for the “Education First” language sponsored by Gibbons and approved by voters, Morgan said the 2015 legislature did exactly what that amendment said not to do—writing and finishing a common schools budget and then draining it for purposes unrelated to the common schools.

“This is exactly what you’re doing,” Morgan said. “You’re appropriating money for public education, and now you’re coming back with this program and sticking a spigot in those funds, and it’s pouring out.”

Morgan said she and her colleagues “knew it [the constitutional language] was really good when the opposition didn’t really talk about it. They just kind of ignored our arguments about the founders.”

Her side may not be that lucky again. On March 8, the Nevada Board of Examiners (the governor, secretary of state and attorney general) approved $125,000 to pay former U.S. solicitor general Peter Clement to aid the state in defending the new law. That came on top of $295,000 already expended for Clement’s services.

The solicitor general represents the federal government before the U.S. Supreme Court, and Clement served in that role during the second Bush administration. He also represented 26 states in the unsuccessful case that sought to overturn the Affordable Care Act. Clement has appeared before the Supreme Court more than 20 times.