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May 26, 2016

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Judge puts sweeping Nevada school choice program on hold

Updated Monday, Jan. 11, 2016 | 9 p.m.

CARSON CITY — A judge put Nevada's sweeping school choice program on hold just weeks before money would have flowed to parents for private school tuition, saying opponents had a reasonable chance of winning when they argue the program's constitutionality in more detail in the future.

Carson City District Court Judge James Wilson granted a preliminary injunction Monday that orders the state treasurer to stop implementing Nevada's new education savings accounts pending further court deliberations. Wilson sided with the plaintiffs — parents in Reno and Las Vegas — who said diverting state money to the voucher-style program as planned in February could do them irreparable harm.

"Judge Wilson's ruling is a victory for all 460,000 public school children in Nevada, their parents, teachers, administrators and school board members," said Sylvia Lazos of the group Educate Nevada Now, which supports the lawsuit. "We are thrilled with the decision and look forward to continuing dialogue focused on improving our state's education systems."

Follow-up court dates haven't yet been scheduled.

The Republican-backed program, which Nevada lawmakers authorized in the spring on party lines, allows parents to claim more than $5,000 in state per-pupil school funds each year and use it for tuition, books or other qualifying expenses as they see fit. It's garnered national attention as the broadest school choice initiative in the country, and proponents say it could change Nevada's reputation from worst in the nation for education to a hotbed of innovative ideas.

"This is a really exciting time for education, and I'd expect Nevada would be the place where this would blossom, much to the benefit of Nevada's children," said Leslie Hiner, vice president of programs at the Friedman Foundation for Educational Choice, which advocated for ESAs. "Legal challenges can be difficult and disappointing and yet nonetheless, this is a fight worth fighting."

Opponents, including Democratic former state Sen. Justin Jones, argue the new law runs afoul of the state constitution by diverting money from public schools. The state has received about 4,500 applications, which would represent about $20 million redirected from districts to parents.

The program "has such a real chance of being such a harm to schools," said Tamerlin Godley, a Los Angeles-based attorney whose firm is working pro bono to fight the program. "Those are real dollars and have a real impact."

Thousands of families who applied were told they could receive funds by February if courts didn't object. Some temporarily moved their children out of home school or private school settings so they could meet one of the program's requirements — that children attend public school for at least 100 days before claiming the funds.

"Thousands of students and their distressed parents may see their plans upended," Treasurer Dan Schwartz said in a statement, adding that he was "obviously disappointed" with the development.

Nevada Attorney General Adam Laxalt said he was encouraged that the judge rejected two of the three arguments plaintiffs made for the injunction, and is considering his next steps on the remaining sticking point. Laxalt, a Republican, hired renowned lawyer and former U.S. Solicitor General Paul Clement to help defend the program.

ESAs are at the center of two other lawsuits, including one from the American Civil Liberties Union that argues the program unconstitutionally allows public funds for religious purposes. A judge hasn't ruled yet in that case.

Godley said it was critical to put the brakes on the program now, before money flowed to families, because it would be tough to claw funds back to the state if ESAs were struck down later. She also said it was encouraging the judge found the ESA opponents' arguments convincing enough to pause the program.

"It's a good sign for prevailing on the merits in the long run," she said.

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