In January District Judge James Wilson of Carson City issued an injunction blocking enactment of the Education Savings Accounts (ESA) approved by lawmakers in Senate Bill 302, saying it violated Article 11, Section 6.2 of the state Constitution.

Shortly thereafter Attorney General Adam Laxalt filed a 62-page brief arguing to the state Supreme Court that the injunction should be lifted and the law enacted as written.

In a press release, Laxalt said, “This injunction has disrupted more than 4,000 Nevada families who hoped to benefit from this innovative program. While I believe the harm cited by the plaintiffs is pure conjecture at best, my office continues to work diligently to get a final answer on the constitutionality of ESAs as quickly and efficiently as possible.”

The gist of the attorney general’s argument is the same as made editorially by this newspaper in mid-January.

While the judge ruled that money set aside for public schools funding may not be used for any other purpose, this ignores the fact the state Constitution says lawmakers are to fund public schools “for the population reasonably estimated…”

The Legislature set statewide per pupil funding at $5,710 per pupil in the Distributive School Account (DSA). The ESA bill dictated that most parents who pull their children from public school would be given 90 percent of that amount to fund education by whatever means they choose — private school, tutoring, homeschooling — thus reducing the population and the needed funding.

“Section 6 imposes three clear and specific duties on the Legislature concerning the funding of the public schools — and the Legislature clearly satisfied all three and SB 302 violates none,” the brief explains.

First, lawmakers appropriated money for public schools on a per pupil basis and put $2 billion in general funds into the DSA to cover both the state’s public schools funding and the ESA program.

Next, as required by a 2006 constitutional amendment, lawmakers funded education first with Senate Bill 515 and at a level that meets the constitutional requirement that “the Legislature shall enact one or more appropriations to provide the money the Legislature deems to be sufficient.”

The brief makes it clear the lawmakers deemed sufficient a per pupil funding level of $5,710 on average across the state and the same lawmakers said parents could tap a savings account amounting to 90 percent of that per pupil amount from the same state appropriation for the purpose of educating the public’s children somewhere other than a public school.

This counters Judge Wilson’s claim that the $2 billion DSA was inviolate and could not be tapped for any purpose other than funding public schools, even though the funding was based on a per pupil basis as are the ESAs.

The attorney general’s brief pointed out repeatedly that the state Constitution merely requires public schools to be funded at a level the “Legislature deems to be sufficient,” and the law funding public schools was passed three days after the ESA law; therefore, lawmakers deemed that amount sufficient.

How are parents of public school children harmed if their schools get 10 percent of the funding for pupils who are not in their public school population? Additionally, public school districts keep local and federal funding. Seems like a benefit more than an irreparable harm to the parents of public school children.

Tamerlin Godley, an attorney for parents challenging the ESA law, was quoted in the press as saying the Constitution creates a “lock box” on public schools funds and the money must be used solely at public schools. That is basically what the district judge ruled, though no one cites specifically where that “lock box” language resides in the Constitution.

The case is being expedited by the Supreme Court. The plaintiffs have three weeks to reply to Laxalt’s brief and the case could be heard and/or decided by the justices in a matter of weeks.

We urge the Supreme Court justices to give this case its highest priority so the parents and children of Nevada may plan their educational futures. — TM