In Duncan v. Sate of Nevada, (NV Dist. Ct., May 18, 2016), a Nevada state trial court judge dismissed state constitutional challenges to Nevada's new Educational Savings Account program. The program, more extensive than any other in the country, allows parents of any child who has attended a public or charter school for at least 100 days to receive into an educational savings account a portion of the state's funding for use at an eligible alternative private (including religious) school. Finding that plaintiffs had standing only to bring facial challenges, the court held that the program does not violate Nevada Constitution Art. XI, Sec. 2 that requires the legislature to provide a uniform public school system nor Art. XI, Sec. 10 that prohibits use of public funds for sectarian purposes.
In a wide-ranging 45-page opinion, the court held that the state constitution does not limit the legislature to providing education only through a uniform public school system. It may also use other suitable means. It also held that the prohibition on using public funds for sectarian purposes only imposes restrictions co-extensive with the federal Establishment Clause.
In January, another trial court judge enjoined implementation of the program. (See prior posting.) Reacting to yesterday's court's decision, Nevada Attorney General Adam Paul Laxalt said in part (full text of statement): "The decision today clears the way for the Nevada Supreme Court to meaningfully address the remaining uncertainty caused by the injunction in the other case challenging Nevada’s ESA program. We are one giant step closer to helping thousands of Nevada families choose the best educational option for their children." AP reports on the decision and the ACLU's reaction to it.
