Attorney General's office says court orders ease path for ESA revival

By Riley Snyder, Michelle Rindels and Megan Messerly

The Nevada Attorney General’s Office is declaring victory after lower court judges issued a narrow block on the state’s Education Savings Accounts program, meaning it should be easier to revive if lawmakers decide to fund it.

Opponents of the voucher-style school choice program had hoped the judges’ orders would have broadly declared SB302, the original bill creating the program, unconstitutional. Lower court orders issued Tuesday and last week took a more limited stance, putting the program on hold until a constitutional funding mechanism is found.

The parties have been engaged in a quiet battle since the Nevada Supreme Court ruled in September that the program’s initial funding mechanism violated the state’s constitution. They’ve tried to influence the phrasing of the lower court orders that actually implement the major decision.

The program, which would allocate up to $5,100 to parents with children enrolled in public school for use in a broad range of educational expenses, will likely re-appear at the Legislature after Gov. Brian Sandoval called for $60 million to fund the program during his State of the State speech on Tuesday.

Opponents of the program have argued that the Court’s September decision effectively entombed the program, especially given new-won Democratic majorities in the state Legislature.

“I think the Supreme Court is just a hard read. We’re going to be quibbling about what that court means for the next decade,” said Sylvia Lazos of Educate Nevada Now, which supported one of the two lawsuits against the program.

Proponents, including Republican Attorney General Adam Laxalt, have framed the decision as a simple funding issue requiring a legislative appropriations fix.

"We are pleased that yet another District Court Judge agreed with our interpretation of the Nevada Supreme Court’s decision on Nevada’s pioneering Education Savings Account law," Laxalt said in a statement.

An order from District Judge Eric Johnson yesterday barred enforcement of the ESA program using the narrow language that Laxalt and proponents had hoped for — “absent appropriation consistent with the Nevada Supreme Court’s opinion.”

In a separate case, District Judge James Wilson last week granted a motion by Laxalt clarifying that only the funding source of the ESA program is unconstitutional, according to the Las Vegas Review-Journal. The decision allows the state treasurer’s office to continue accepting applications to the program.

While seemingly minor, both lower court decisions are heralded by supporters as clearing the way for the program to operate if specific funding is allocated.

“The difference between invalidating a law and conditionally enjoining enforcement of a law is one that eliminates the law from the books and the other keeps it on the books awaiting the removal of whatever obstacle exists,” Laxalt wrote to the court in December.

Republican lawmakers approved SB302 during the 2015 Legislature on a strict party-line vote. Opponents of the ESAs say they’ll have to see whether the Democrats who are now in control will hold fast against the program.

“There’s a lot of outside money coming in and there’s no way that we can match the millions of dollars“ coming from the other side, Lazos said. “We will continue to engage in dialogue about basic values like equity, transparency, and does this make sense in terms of public policy.”

Opposition to Request to Enter Proposed Order Issuing Declaratory Judgme... by Riley Snyder on Scribd

Motion for Permission to File Sur Reply Mot by Riley Snyder on Scribd

Order Issuing Declaratory Judgment and Permanent Injunction by Riley Snyder on Scribd