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ESA's Are Dead. Could They Be Resuscitated?

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Governor Brian Sandoval will create a blue ribbon commission to look into resurrecting the now defunct Education Savings Accounts by changing the funding mechanism for the program, according to State Sen. Patricia Farley, (R) - Dist. 8.

The move comes after the Nevada Supreme Court ruled last week that the program was unconstitutional because lawmakers took money from State Distributive Schools account that can only go to public schools.

The commission, said Farley, "will come up with some suggestions to the governor about where we should get the funds," Farley said.

Where to get the funds to re-enact the law is a key question. Farley would not say whether she supports an additional tax; nor would she say where she would take the money from. She did indicate that the Republican caucus would likely wait to see the results of the Clark County School District's reorganization plan.

And, since ESAs are a Republican item, a new law will not likely get out of committee unless Republicans win back the legislature in 2017.

A fix to the program will not be addressed in the special session set for next week to look at increasing the hotel room tax to pay for the in $750 million public money for the proposed stadium. 

Farley told KNPR's State of Nevada that fixing the funding source fixes the problem of the program being unconstitutional.

This irritates Amy Rose, the legal director at the ACLU of Nevada.

“I know there is obviously a lot of talk of trying to find a fix, but I think that is the wrong way to talk about this," she said, "This is unconstitutional, period.” 

The ACLU filed one of two lawsuits against the program. The ACLU argued against not only the funding of the program but also against the use of public money for religious purposes. Under the program, parents were allowed to use the money on any educational institution they wanted, including faith-based schools. 

The High Court ruled that the money actually became private money when it was given to parents. Rose, however, said there are still questions about whether the money is public or private and two State Supreme Court justices agreed with the ACLU in a dissenting opinion.

Rose pointed out that parents could direct the money but it was the state that actually gave the money to the school.  

The second suit was brought by the group Educate Nevada Now. That lawsuit and part of the ACLU's suit is what the court agreed with. 

Sylvia Lazos is the policy director of the group.

“The court said, ‘take the money from general funds, don’t take it from public school budget and you’re fine if you create that particular program,'” she said.

But finding a new funding source isn't that easy, not only because of the other programs and departments the state funds through the general fund, but because of the unlimited nature of the original ESA program.

Originally, any parent in any income bracket and under any circumstances could apply for and get about $5,000 to go towards tuition for private school for their children. 

Lazos said because the money can't come from the public school funds, the program is no longer unlimited.

“Once you fix the amount of how much you are going to allocate then you have to make decisions of who gets that $5,000 voucher,” she said. 

Farley pointed out that even though someone might live in an affluent neighborhood or appear to have a healthy paycheck doesn't mean they are 'affluent.' She believes the decision of who should get what amount of money should be made with one thing in mind: the student. 

“What we gotta do is meet the need of the student first," she said, "I think that needs to be our priority.”

While she supports the idea of giving parents a choice when it comes to a student's education, Lazos believes Nevada needs to address the bigger problem of funding education properly for everyone.

"What’s really important for the state of Nevada is to have a public school system that is not number 50 and to do that we need to invest a lot more than $40 million to move the whole state forward, because when businesses make decisions to be here they’re not looking at voucher choices," she said. "They’re looking at, where is your public school system rated?”


Sylvia Lazos, policy director, Educate Nevada Now;  Amy Rose, legal director, ACLU of Southern Nevada; State Senator Patricia Farley, (R) - District 8

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(EDITOR'S NOTE: Carrie Kaufman no longer works for KNPR News. She left in April 2018)