- - Monday, October 17, 2016

ANALYSIS/OPINION:

Last week the Nevada Supreme Court issued its long-awaited decision on Education Savings Accounts, or ESAs, and upheld the law creating the ESA program. Parents, children and educational choice supporters across the nation have looked to Nevada as the new national leader in educational choice and opportunity. The court requires the legislature to revise its method of funding the program, but the ESA law, now confirmed as constitutional, makes Nevada the pioneer of the most inclusive educational-choice law in history.

Nevada’s decision is also the latest to reject constitutional Blaine Amendments and uniformity clauses as potential legal barriers to expanding educational options for children — the two challenges faced in most other states in school-choice litigation.

The ESA law’s purpose is simple — to allow parents to use some of the money that the state ordinarily spends on their child in public school toward education outside that system. The theory is that just as parents have the freedom to choose the doctors their child sees or the food they eat, parents can now choose how and where their child learns. ESAs can be used for everything from private-school tuition to online learning and self-created curricula. The “Nevada plan” is already a model for as many as 18 other states.

Some public-school advocates have argued that ESAs take funds from public schools already struggling with overcrowding and teacher shortages. But in Nevada traditional public-school supporters can rest assured that their children will not be deprived of a single dime.

Nevada schools are funded based on the number of students actually attending, not a fixed lump sum. This means that whether or not their classmates choose to obtain ESAs, each student enrolled in a public school will always receive the amount promised to her as a student. At the same time, ESAs will ease overcrowding and teacher shortages.

The Nevada high court’s decision is significant in adding one more authority against Blaine Amendments, a law found in some 35 state constitutions that prohibits, to varying degrees, public funds from flowing to “religious” or “sectarian” recipients. Opponents of school choice use the law to try to cut off programs that they say benefit religiously affiliated schools, even if the money also flows to wholly secular schools.

Nevada’s decision joins recent decisions in Indiana (2013) and Oklahoma (2016) in observing that the money goes not to school but to parents, who choose where to spend money for the child’s education. Anti-choice plaintiffs nationwide also assert that the common requirements in state constitutions to maintain a “uniform” public school system is impaired by educational choice. Nevada now joins Indiana, North Carolina and Wisconsin to reject this sort of challenge: A state can maintain a public school system and introduce choice.

Nevada already provides on-the-ground lessons to other states. Nevada has more than 460,000 public-school students, yet only about 8,000 of eligible parents so far have applied for ESAs. That’s not even 2 percent.

This suggests that parents don’t switch their children’s school like they switch gyms. A school, even if not a child’s favorite place in the world, is still his school, with his friends, his teachers, his soccer team. Parents who seek an ESA to switch schools always have a very good reason.

Take Patrick, the second-grade son of a Henderson police officer, who enjoys history — but not math. His struggles with arithmetic undermined his self-confidence across all subjects. When he found a private, history-based school that teaches math but also incorporates presidents, famous events and constitutions wherever possible, he came to love school again.

Angelique, the daughter of a Las Vegas homemaker, has a sensory processing disorder that makes sound and commotion painful — so painful in fact, that she could not eat in the cafeteria of her large public school because she was overwhelmed by clanking dishes, crinkling wrappers, and shouting children. Her mother, in desperation, started homeschooling her — until she found a small nonprofit private school she could afford using an ESA. Angelique is thriving again.

A class size of 15 instead of 30 made the difference. (The delay in receiving ESA money, caused by litigation, has forced Patrick temporarily to go back to public school, while Angelique’s mother took a job to keep her daughter in their school of choice.)

The victory of the Nevada educational choice law should hearten families and choice advocates nationwide. Nevada is one of more than 30 states that have legislated for educational choice over the last 25 years. Educational choice is the nation’s future, and Nevada is shining that light for all to see. The Nevada Supreme Court now clears the way for Nevada to join that future.

Adam Paul Laxalt is the attorney general of Nevada and his office was tasked with defending the ESA law. Robert Enlow is president and CEO of EdChoice, a national nonprofit that helped craft the Nevada ESA law and filed amicus briefs in the litigation.

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