Monday, August 31, 2015

Nevada's Education Savings Account Will Have Its Day in Court

Posted By on Mon, Aug 31, 2015 at 9:00 AM

Nevada has a new Education Savings Account law. It's pretty much the same as Arizona's law, with one difference. Every student can use it, so long as the student has been in a public school at least 100 days. In Arizona only a limited number of students qualify. The Arizona folks who pushed our ESA want the same universal access as Nevada, but they decided to start small, then expand the law to include more students each year until everyone qualifies.

The ACLU is taking the Nevada law to court, saying it violates the separation of church and state because ESAs are basically vouchers which use government funds to pay for private school tuition. There's nothing illegal about using government funds to pay for private school so long as the schools don't have religious affiliations. The problem is, across the country 70 to 80 percent of private schools are connected to a church, and the constitutions in Arizona, Nevada and many other states forbid the use of government funds for religious education. 

It sounds like the ACLU should have a strong case against the Nevada law, but Arizona's ESA law was challenged on the same grounds, and the court ruled that the program is constitutional. But you never know. Different state, different court, different people making the argument against the law. Anything can happen.

Congratulate the Goldwater Institute for how cleverly it designed the ESA's work-around to the church-state problem. True, the tuition money comes from state funds, and true, it often goes to pay for tuition at religious schools. But using a green-eyeshade sleight of hand, the funds are moved from the general funds column of the state ledger into a special "savings account" box with a student's name on it. That somehow makes everything OK because the state isn't actually paying for the religious school tuition, it's just giving the money to the parents who then use it to pay for their children's educations. That one degree of separation launders the money, somehow washing it clean of any government connection and making it all legit. ESAs clearly violate the spirit of the state constitution, but the courts have decided they manage to stay within the letter of the law.

My bet is, the ACLU will lose its Nevada battle against the ESA, especially since some of the big pro-voucher guns are in town to defend the law. But if the ACLU prevails, we may see the ESA fight revived in Arizona.

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