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By Don Byrd

The Nevada Supreme Court ordered a permanent injunction to halt the state’s school voucher program on Sept. 29, but not for the reason sought by many religious liberty advocates, including the Baptist Joint Committee.

Nevada’s Education Savings Account (ESA) program, enacted in 2015, allowed parents to apply for funding that can be used to send their children to private schools, including sectarian religious schools. The court rejected plaintiffs’ argument that the ESA program violates state law prohibiting the use of public funds for sectarian purpose. Instead, the court’s reason for the injunction is that the legislature failed to separately fund the program. It is not permitted under Nevada law to pay for vouchers out of funds appropriated for public education.

The court did address the religious liberty argument, which rests on a provision of the Nevada Constitution that states, “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.” So-called “no-aid” provisions like Nevada’s are common in many state constitutions, and they are traditionally interpreted to offer even more robust church-state protections than the First Amendment requires.

In this case, however, the lower court ruled that Nevada’s no-aid provision offers the same protections as the First Amendment, prompting many advocates to speak out. The BJC filed a friend-of-the-court brief urging the state Supreme Court to reject the district court’s cramped interpretation of the no-aid provision.

In the ruling, the Nevada Supreme Court did not comment on that specific dispute, instead holding that the no-aid provision does not apply here because funds held in the ESAs belong to the individual parent and thus are not “public funds” subject to that church-state limitation.

Despite giving broad approval to Nevada’s voucher mechanism (if the legislature funds it properly), the Nevada Supreme Court’s reasoning on the religious liberty question stopped short of the district court’s sweeping limitation of Nevada’s no-aid protection.

From the September/October 2016 edition of Report from the Capital. You can also read the digital version of the magazine or view it as a PDF.