Many of the news stories about the ACLU suing to block implementation of Nevada’s education savings accounts (ESAs), approved by this past Legislature as Senate Bill 302, mention that such accounts were declared unconstitutional in Colorado recently. Like Nevada, Colorado’s state constitution includes a Blaine Amendment prohibiting the use of tax money for secular purposes.

Few bother to mention that Arizona also has a Blaine Amendment in its constitution, but the Arizona Court of Appeals upheld Arizona’s ESAs two years ago.

That court found that ESAs were neutral toward religion by leaving spending decisions to parents, not the state:

The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion. Any aid to religious schools would be a result of the genuine and independent private choices of the parents. The parents are given numerous ways in which they can educate their children suited to the needs of each child with no preference given to religious or nonreligious schools or programs. … The ESA is a system of private choice that does not have the effect of advancing religion. Where ESA funds are spent depends solely upon how parents choose to educate their children. Eligible school children may choose to remain in public school, attend a religious school, or a nonreligious private school.

Yet the morning Las Vegas newspaper quotes Tod Story, executive director for the ACLU of Nevada, as saying, “The education savings account law passed this last legislative session tears down the wall separating church and state erected in Nevada’s constitution.”

The Nevada Constitution says: “No sectarian instruction shall be imparted or tolerated in any school or University that may be established under this Constitution.” It also says, “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.”

The ACLU lawsuit argues: “The Program establishes a system whereby, instead of enrolling their children in public schools, parents may obtain and use public money to pay for enrollment in private religious institutions. This is exactly what the Nevada Constitution forbids.”

Once it is in the hands of the parents, is it public money?

After the lawsuit was announced, the Institute for Justice (IJ), which advised Nevada lawmakers drafting the ESA law, issued a statement. Senior Attorney Tim Keller said:

We worked closely with the state legislature throughout the drafting process to ensure the program’s constitutionality, and we fully intend to defend it against this baseless and cynical lawsuit. Nevada’s Education Savings Account (ESA) Program was enacted to help parents and children whose needs are not being met in their current public schools, and we will work with them to intervene in this lawsuit and defeat it. The Supreme Court of the United States, as well as numerous state supreme courts, have already held that educational choice programs, like Nevada’s ESA Program, are constitutional. We expect the same from Nevada courts.

IJ helped Arizona defend its ESA program. Keller noted that, like Arizona’s ESA program, “Nevada’s ESA program does not set aside a single dollar for religious purposes, but instead gives parents a genuine choice as to how to spend the money deposited in their child’s education savings account.”

Patricia Levesque, CEO of the Foundation for Excellence in Education, said of the ACLU suit, “It is ironic that the ACLU pledges itself to ‘defend and preserve the individual rights and liberties guaranteed to every person. … Yet today the ACLU opposes giving every parent in Nevada the right to decide where his or her child goes to school. There is no more fundamental right in this country than trying to create a better life for your child.”

The morning paper also noted that a group calling itself Educate Nevada Now also plans a suit to try to strike the ESA law, but will argue that the law runs counter to a constitutional requirement that the state “sufficiently” fund public schools, a rather nebulous concept.

The claim that the law will strip desperately needed funding from already starving local school budgets is blatantly false. It will relieve those schools of overcrowding and will only cost them a portion of the state’s Distributive School Account. Each school would still get 10 percent of state funding for most students who leave, as well as local and federal funds for students zoned in that school but who do not attend. Schools would actually get more funding per pupil for those who remain in public schools and will not have to build as many new schools.

The law allows the state Treasurer to set up savings accounts for parents who choose to take their children out of public schools. For most the annual account will be equal to 90 percent of the public school per-pupil state funding allotment or a little more than $5,000. Parents earning less than 185 percent of the federal poverty level would get 100 percent of state funding.

The money can be spent on tuition at private schools — even church-operated schools, according to backers — textbooks, transportation, tutoring, testing, curriculum, homeschooling and supplemental materials.

The law goes into effect on Jan. 1, but a qualifying child must have “attended a public school for 100 consecutive school days to enter into an agreement …”

Though opponents of the law say there will be no accountability for the quality of education of those receiving ESAs, the law requires students with ESAs to take standardized examinations in math and English and make the results available to the state Department of Education, which must publish aggregate data on the results.

Republican Attorney General Adam Laxalt is tasked with defending the Nevada law from such court challenge. His office has a general policy of not commenting on pending litigation.