Lt. Gov. Mark Hutchison sues to speed school choice ruling

By Michelle Rindels, Associated Press

Thursday, Dec. 24, 2015 | 12:37 p.m.

Nevada Lt. Gov. Mark Hutchison filed a lawsuit this week on behalf of parents stuck in limbo over the state's embattled new Education Savings Account program, although the state treasurer, who's administering the accounts and is named as a defendant, said the move could jeopardize ongoing legal efforts to defend the program.

The lawsuit, filed Tuesday in Clark County court and in the Republican lieutenant governor's capacity as a private lawyer, comes a little more than a month before parents expect money to flow to the accounts. Some families have placed their children in private schools at their own expense in anticipation of getting the financial aid, worth more than $5,000 annually per student, later in the school year.

"Families across Nevada right now are planning their children's educational future and for thousands of households, the plan includes access to ESAs," Hutchison said in a statement. The lawsuit "seeks to assure those families that the ESA program will be timely and fully funded as intended by the Nevada Legislature and allow those families access to high-quality education that may otherwise be out of their reach."

Lawmakers approved the sweeping school choice program along party lines this spring, with Republicans arguing that it would give students struggling in public schools an opportunity in private schools that they otherwise couldn't afford. Nevada is already defending itself against two lawsuits seeking to stop the program, and state Treasurer Dan Schwartz said the new lawsuit from Hutchison was "a side track to nowhere."

"Hoping to bypass the current cases, the Lieutenant Governor could well jeopardize the Attorney General's defense of Nevada's ESA program, endangering very real benefits for the children and parents of Nevada," Schwartz said in a statement Thursday.

Reached for comment Thursday, Hutchison said his lawsuit was complementary to two ongoing legal defense efforts. He said that as plaintiffs, his clients will have more control over the timing of legal proceedings than they would as defendants in the other suits.

"My lawsuit seeks, as quickly as possible, to rule that ESAs are constitutional, and to remove any impediments the treasurer believes to exist in implementing the ESAs," he said.

Plaintiffs in Hutchison's lawsuit include Zavia Norman, who enrolled her two younger daughters in Anderson Academy of Mathematics and Sciences in Las Vegas this fall and has also applied for ESAs on their behalf. Norman, a respiratory therapist, has been picking up overtime shifts to cover the $800-a-month tuition bill for her daughters, but isn't able to keep up the schedule indefinitely and may have to put them back into public school if the ESA program is struck down, according to the lawsuit.

Another plaintiff is Glynis Gallegos, whose 11-year-old son also enrolled in Anderson Academy and has made major academic strides compared with his time in public school, according to the complaint. Gallegos is unable to keep up with $500-a-month tuition payments long-term, and would also have to pull her child out of the private school if ESA funding doesn't come through, the complaint said.

Students must attend public school for at least 100 days before becoming eligible for the program. Some parents have moved their children temporarily from private schools or homeschool settings into public schools in order to qualify, and state officials have noted the major disruption that looms if the courts put it on hold.

Groups challenging the program, including the American Civil Liberties Union and a coalition led by Democratic former state Sen. Justin Jones, say they worry it will funnel money toward religious schools in violation of the constitution or siphon funds away from already-strained public schools.

Nevada Attorney General Adam Laxalt's office noted Thursday it was vigorously defending the state against challenges to the program, and had enlisted a renowned lawyer, former U.S. Solicitor General Paul Clement, to assist.

"The Attorney General's Office will continue to work with our clients to defend Nevada's ESA program against all disruption, including suits that threaten to delay and distract current court proceedings where a decision is imminent, so that the thousands of Nevada's families who have already applied can see the program realized as soon as possible," the office said in a statement.

A judge is expected to rule any day in the ACLU case.