Dismissing a challenge from the ACLU, yesterday Las Vegas District Court Judge Eric Johnson ruled that Nevada’s education savings account (ESA) program is constitutional. Nevada parents who opt out of the public school system can receive ESAs into which the state deposits a portion of the funding that the state would have provided had their child attended a public school. Parents can then use the ESA funds on a wide variety of approved educational expenses, including private school tuition, tutoring, text books, homeschool curricula, online learning, educational therapy, or even college courses.
The ESA program was set to go into effect this year, however, it is still on hold due to a second lawsuit in which a judge issued an injunction halting administration of the program. That case is currently pending before the Nevada Supreme Court, and it is possible that the two legal challenges will be merged.
The ACLU challenged the ESA law on two central grounds, claiming that it violated the Nevada Constitution’s “uniformity” clause and the state’s historically anti-Catholic Blaine Amendment. Siding with the state of Nevada and the Institute for Justice, the court rejected these claims.
“Uniform” Does Not Mean “Exclusive”
Nevada’s state constitution requires that the legislature “shall provide for a uniform system of common schools.” These schools must “be established and maintained in each school district at least six months in every year” and it is forbidden for these schools to “allow instruction of a sectarian character therein.” In a separate clause, the state constitution enjoins the legislature to “encourage” education “by all suitable means.”
The ACLU argued the “suitable means” mentioned in Article XI, Section 1 are defined by uniformity clause in Section 2. The ACLU cited the infamous Bush v. Holmes decision in Florida, in which Florida’s state supreme court struck down the state’s voucher program by interpreting the state’s duty to create a “uniform” system of public schools to mean that the state had a duty to provide a system of schooling exclusively according to the means described in the state constitution, despite the state constitution empowering the legislation to create “other public education programs that the needs of the people may require.” (The Florida Education Association is now suing to halt the state’s tax-credit scholarship program on the same grounds.)
However, the judge rejected this interpretation, holding instead that that in these two clauses, “the framers indicated that they intended to create two duties, a broad one to encourage education by ‘all suitable means,’ and a specific, but separate, one to create a uniform public school system.” The judge noted that the framers’ “use of two different sections to set out the Legislature’s responsibilities without reference in either section to the other plainly suggests the sections are separate and distinct.” By contrast, adopting the ACLU’s clever but strained interpretation would, according to the judge, “make section 1 superfluous, without any meaning or purpose.”
In other words, the Nevada constitution requires the state to establish a non-sectarian system of public schools, but it is also empowered to encourage education by other means that are not limited to non-sectarian schooling.
Winning the Blaine Game
The ACLU also claimed that the ESA law violated the state constitution’s Blaine Amendment, which states that “[no] public funds of any kind or character whatever […] shall be used for sectarian purpose.” As the Becket Fund details in their amicus brief, this clause was inserted into the Nevada state constitution out of animus toward Catholics during a time when the so-called “common schools” were actually de facto non-denominational Protestant schools that taught the Bible and held prayer in school. (“Sectarian” was a thinly veiled euphemism for “Catholic.”)
Having already found that the legislature has a general power to create programs like the ESA, a finding that the ESA ran afoul of the Blaine Amendment would only have invalidated its use at religious institutions, similar to the Montana Department of Revenue’s interpretation of its own state constitution with regard to administering its state’s tax-credit scholarship program. (It should be noted that the Institute for Justice is suing the Montana DOR, arguing that excluding religious institutions from participating in a religiously neutral program violates the US Constitution’s Free Exercise clause.) However, the judge held that the ESA did not violate the Blaine Amendment.
Following the US Supreme Court’s First Amendment jurisprudence, the judge held that the Nevada Constitution prohibits aiding one religion, preferring one religion over others, or aiding all religions in a manner that prefers religion over non-religion, citing in particular the state constitution’s declaration that the “free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed in this State.” The Blaine Amendment had prohibited “sectarian” instruction in the public schools, but did not preclude the legislature from enacting religiously neutral programs that would provide funding to families to educate their children in the manner they preferred, whether at a religious or secular institution. In rejecting the ACLU’s view, the judge cited the Indiana Supreme Court’s 2013 decision Meredith v. Pence, which held that it was “inconceivable” that own state’s Blaine Amendment would prohibit:
any and all government expenditures from which a religious or theological institution derives a benefit — for example, fire and police protection, municipal water and sewage service, sidewalks and streets, and the like. Certainly religious or theological institutions may derive relatively substantial benefits from such municipal services. But the primary beneficiary is the public, both the public affiliated with the religious or theological institution, and the general public.
The Indiana Supreme Court concluded: “Any benefit to religious or theological institutions in the above examples, though potentially substantial, is ancillary and indirect.” Likewise, the Nevada judge held, any benefit to religious schools from the ESA was ancillary and indirect. The Blaine Amendment “was not intended to preclude any expenditure that has an incidental benefit to religion, where such is made for a primary secular purpose,” and the ESA “was enacted for the valid secular purpose of providing financial assistance to parents to take advantage of educational options available to Nevada children.”
A version of this post originally appeared at the Cato-at-Liberty blog.