PHOTO/DENNIS MYERS The odds got a little longer on the state grants program functioning in this school year.

A state district judge has brought Nevada’s school grants program to a halt with an injunction requested by a parents group.

Nevada District Judge James Wilson Jr. issued the injunction on Jan. 11, and gave his reasons in a detailed ruling. He acted in a lawsuit brought by seven parents, members of the parents group Educate Nevada Now.

Their target is Senate Bill 302, approved by the Nevada Legislature at its session last year. The measure pays parents to take their children out of public school.

Under the program, money from the state’s per-pupil expenditure for public schools—$5,100 to $5,700—is given to parents for use in educating their children outside the public school system.

The funding is not limited by income. Steve Wynn would be as eligible as any other parent. In addition, the program has turned out to effectively be limited to upper income families because most Nevada private schools charge more than is made available to the parents by the state—and lower income people are less able to make up the difference. As a result, nearly all applications for school grants have come from affluent addresses, according to the Reno Gazette-Journal. Other states with similar programs, such as Arizona, Tennessee and Florida, either limit funding to low-income families or limit it in other ways, such as to disabled students.

A second lawsuit is still pending. That one, filed by the American Civil Liberties Union of Nevada, charged the payments are a subsidy to religion. Most Nevada private schools are religious. Supporters of S.B. 302 say by giving the money to the parents instead of directly to the schools, it does not support religion.

But the Educate Nevada Now lawsuit, on which Judge Wilson ruled, took a different tack. It argued principally that 302 diverts money that is reserved by the Nevada Constitution solely for use by the legislature for public school funding.

If there were conservatives waiting to attack any interference with 302 as a breach of judicial restraint, Wilson’s opinion anticipated them. The judge wrote that “the issues before [me] do not include the educational or public policy merits” of the legislation. Thus, he was not substituting his judgment for the legislature’s on whether the program was advisable or useful. Rather, he was deciding whether it is in compliance with provisions of the Nevada or U.S. constitutions. In case anyone missed the point, he included a little paean to judicial restraint:

“The educational and public policy issues were debated and voted upon by the legislature and approved by the governor. Courts have no super-veto power, based upon public policy grounds, over legislative enactments. Therefore, this court cannot consider whether the SB 302 provisions for education savings accounts are wise, workable or worthwhile.”

Wilson also said the burden of showing that 302 is unconstitutional is on the parents.

The parents who sued argued that 302 violates Article 11, the education section of the Nevada Constitution, by violating four clauses in that article—sections 2, 3, 6.1, and 6.2.

The state constitution requires the legislature to decide how much money is needed to support the public schools and then fund them at that level. There is a formal process for deciding what that level of support is, and the lawmakers then fund the Distributive School Account (DSA) at that level. Once that money is allocated to the DSA, it is all but sacrosanct. It can’t be diverted to law enforcement, say, or fish and game programs.

The lawmakers had found that, for the current biennium of 2015 to 2017, $5,710 per pupil would be required in the first year and $5,774 in the second year, and the lawmakers put more than $2 billlion in the DSA to cover those costs.

Wilson found that the parents were wrong that section 2 and 3 of the Nevada constitution were violated by 302. They had argued that section 2 created an alternative school system and used public school funds to pay for it. They had also argued that section 3 moneys are needed to make the program work. Wilson ruled that the program can function without section 3 funding.

But on sections 6.1 and 6.2, Wilson found the parents were on sounder ground. He wrote, “Sections 6.1 and 6.2 require the legislature to set aside or assign money to be used to fund the operation of the public schools, to the exclusion of all other purposes. Because some amount of general funds appropriated to fund the operation of the public schools will be diverted to fund education saving accounts under SB 302, that statute violates Seconds 6.1 and 6.2 of Article 11.”

Because 302 uses the DSA to pay for the school grants to private school families, he wrote, it “diverts funds from the DSA, thereby reducing the amount deemed sufficient by the legislature to fund education. …

“The court concludes that the diversion of any funds in violation of Article 11, Section 6 will cause irreparable harm to students in Nevada. The court concludes Plaintiff Parents have demonstrated irreparable harm and that on balance the potential hardship to Plaintiff Parents’ children outweighs the interest of the Treasurer and others.”

He enjoined the state Treasurer, who was designated by the lawmakers to administer the program, from implementing S.B. 302.

Wilson’s ruling leaves ways for the legislature—if the Republicans are back in charge in 2017—to accomplish funding of the program without tapping the DSA, though what the source of funds might be is far from clear.

Others are not waiting that long. Attorney General Adam Laxalt announced he will take Wilson’s ruling to the Nevada Supreme Court.

“After considering our legal options, my office on Friday filed an appeal to the Nevada Supreme Court,” he said in a prepared statement. “As we have repeatedly done in the ESA lawsuits, we will seek an expedited ruling to ensure that thousands of Nevada families receive the clarity they need as soon as possible.”

In a subplot, on Dec. 22, Lt. Gov. Mark Hutchison filed his own court action. It was inconsequential, supportive of 302 and seeking expedited action on the other lawsuits, but the state treasurer and attorney general—both Republicans like Hutchison—freaked at sharing their publicity and denounced the lieutenant governor, setting off fireworks that for a while overshadowed the original issue. On Jan 14, Laxalt and Hutchison issued a statement saying, “In light of Judge Wilson’s decision … we have set aside our strategic differences.”

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Dennis Myers

Dennis Myers was the news editor of the Reno News & Review. He was a journalist for more than four decades. In 1987-88 he was chief deputy secretary of state of Nevada. He was coauthor of Uniquely...