Battle over school choice comes to a head before Nevada Supreme Court

By Ian Whitaker

Friday, July 29, 2016 | 2 a.m.

In the year since Nevada’s controversial education savings account program was passed by a Republican Legislature and signed by Gov. Brian Sandoval, the Silver State has become the front line in the battle over school choice.

State officials swung into action piecing the program together, national groups supported grassroots advocates spreading the message of school choice, and opponents were there every step of the way arguing the program would siphon resources from the state’s already ailing public school system.

Today is the day that fight finally comes to a head.

This morning, the Nevada Supreme Court will hear arguments for and against the program, which could make or break education savings accounts in Nevada and aspiring programs in the rest of the country.

Hundreds of advocates on both sides of the issue are set to rally outside the Regional Justice Center in downtown Las Vegas, where turnout is expected to be so high that the court is providing overflow rooms for those watching the proceedings.

The ESA program has been on hold since January, following an injunction by a district court judge. The decision was quickly appealed to the state Supreme Court, which will also hear arguments in a separate case brought last year by the Nevada ACLU.

Assisting the state’s defense is former U.S. Solicitor General Paul Clement, whose Washington, D.C., firm, Bancroft PLLC has been paid nearly half a million dollars to help defend the program. The firm has a history of taking up conservative legal causes, such as defending the Defense of Marriage Act and challenging the constitutionality of Obamacare.

“We are pretty confident that we are going to win this case outright,” said Michael Chartier, state director for the Friedman Foundation, which helps defend school-choice programs nationwide. “The claims on the other side are pretty weak.”

Those claims are that the ESA program, in letting families use state education funds for things like private school, violates the state constitution’s requirement that public money go to a “uniform system of common schools.” The state contends “common schools” don’t necessarily mean “public schools.”

Where other states have restrictions on who can qualify for ESAs, Nevada’s program is unique — and controversial — due to the fact that it is open to anyone, regardless of income. If it’s upheld, it could have a ripple effect in other states looking to enact similarly expansive ESAs.

“This is quite a radical program,” said Sylvia Lazos, law professor at UNLV and policy director for Educate Nevada Now. “There is no voucher program in the country that is not means-tested.”

“We interpret the constitution to say public dollars should go to public schools,” she added.

Elsewhere, ESA programs have had positive results in front of high courts. Arizona’s program, seen as the most similar to Nevada’s, was upheld in 2013, as were ESAs in Ohio, Wisconsin, Indiana, Oklahoma and North Carolina. Similar voucher programs were defeated in Florida and Colorado.

On the other hand, Nevada’s ESA case has moved through the courts faster than any other state, good news for families and advocacy groups looking for a quick decision in the case.

Groups like the Friedman Foundation, which joined a handful of other national groups filing amicus briefs in support of the ESA program, have been intimately involved in pushing the program in the state, from holding information sessions in private rooms at the Las Vegas Country Club to helping local advocates build support for the program.

Coco Llenas, founder of the Nevada School Choice Partnership, is one of those advocates. For months she has been working to spread the word in minority and low-income neighborhoods.

“The reason I wake up every morning is because I truly believe [the court] is going to say yes,” she said. “Ever since the injunction, my attitude has been, it’s not over until it’s over.”

For the nearly 8,000 people statewide who have applied for an ESA, the best case scenario is for the court to rule in favor of the program early next month. That would give the treasurer’s office enough time to disburse ESA money to families as early as November.

“People are biting their nails for sure,” Llenas said.