In Schwartz v. Lopez, (NV Sup. Ct., Sept. 29, 2016), the Nevada Supreme Court gave a mixed victory to opponents of the state's school choice program. The state's Educational Savings Account program is the most extensive in the country. It 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 public school funding for use at an eligible alternative private (including religious) school. (See prior posting.) The Court held that the plan does not violate Art. 2, Sec. 11 of the Nevada Constitution that requires the legislature to provide for a uniform system of common schools. Nor does it violate Art. 11, Sec. 10 that prohibits use of public funds for sectarian purposes since the funds cease being public funds when deposited in a parent's educational savings account.
The Court however held that no valid appropriation had been made by the legislature to fund the Educational Savings Account program. The state is using funds appropriated for public schools. Therefore the Court remanded to the trial courts the two cases under review ordering the issuance of declaratory judgments and permanent injunctions against implementing the Educational Savings Account program until the legislature makes a valid appropriation to cover its costs.
Justices Douglas and Perry dissented in part contending that the Court should not have reached the issue of whether the plan violates Art. 11, Sec. 10's prohibition on use of public funds for sectarian purposes. Las Vegas Sun reports on the decision.
