- Associated Press - Friday, July 29, 2016

LAS VEGAS (AP) - A sweeping, voucher-style program that would allow parents to claim thousands of dollars per year in state funds designated for their child’s public schooling, and use it for private tuition or other qualified education expenses, faced its biggest test yet on Friday with arguments from supporters and opponents before the Nevada Supreme Court.

Justices asked pointed questions about the constitutionality of Nevada’s Education Savings Account program, considered the nation’s broadest school choice measure because it applies to most students and doesn’t cap participation.

The program has been on hold since last winter and hasn’t yet disbursed any funds. Some of the families that submitted the estimated 7,600 pending applications rallied outside the court in hopes of a decision that would open up their options in the upcoming school year.

“They’ve lost a year already,” said Tim Keller, an Arizona-based attorney with the Institute for Justice who has defended the program in one of the two lawsuits. “Instead, they’re trapped in chronically low-performing schools based on nothing more than their ZIP code.”

Opponents of the law, which passed on party lines in the Republican-controlled Nevada Legislature in 2015, filed two challenges against it.



One argues that the program skirts a constitutional obligation to keep public education funding strictly within the public school system, while the other argues it violates a provision preventing public money from flowing to sectarian purposes.

Justices questioned both sides on on whether the $2 billion that Nevada lawmakers put into the state’s Distributive School Account was meant for public schools alone, or could be tapped to fund other programs such as ESAs. Attorney Tamerlin Godley contended that adding another program to the mix brought the total funding for public schools below the level that lawmakers would consider sufficient.

Paul Clement, who defended the state alongside the Nevada Attorney General’s Office, argued that public funding is still adequate because Nevada guarantees schools a per-pupil funding allotment and backfills their coffers if they lose students - and the accompanying money - too quickly.

Justices also zeroed in on a case from the ACLU that argued the money would support religious schools that can discriminate and offer religious teaching.

Program defenders argue that while money could end up at religious schools, it’s the parents who decide it should go there. Clement said that distance is enough of a “circuit break” that the money is no longer public and the state remains neutral.

Richard Katskee of Americans United for Separation of Church and State contended that the state still puts some restrictions on how the money in their ESA accounts is spent, so the money is still technically public.

Chief Justice Ron Parraguirre said he’s aware that families are anxiously awaiting a decision and promised to carefully consider the arguments. It’s unclear when a decision will be issued, but state officials hope to get money flowing to families by November if it comes soon.

Outside the court, hundreds of protesters for and against the law turned out with signs and bullhorns for a noisy, peaceful protest.

Chants of “No vouchers!” and “Public money for public schools!” from opponents of the Education Savings Account program were met by shouts of “We want choice!” and “ESA means smarter kids!” from supporters.

“These parents that didn’t have the financial resources to exit out of the system, now, through ESA have a great opportunity to find choices for their children,” said Hergit “Coco” Llenas, of the Nevada School Choice Partnership. The organization backs the law.

Sylvia Lazos, policy director at Educate Nevada Now and a law professor at the Boyd School of Law at the University of Nevada, Las Vegas, opposes the program. She said the fight against the law was about “maintaining public schools and making sure public schools work for everyone.”

ESA accounts have become a rallying point for Republican legislators, who say it will help children afford school options that better fit their needs. It’s part of a broader school choice movement praised by presidential candidate Donald Trump.

Opponents, typically Democrats, see it as abandonment of the public school system.

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