Written by Don Byrd
The Nevada Supreme Court earlier today ordered a permanent injunction to be issued, halting the state’s new school voucher program. But not for the reason many religious liberty advocates sought.
Nevada’s Education Savings Account (ESA) program, enacted in 2015, allows 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 reason for the injunction is that the legislature failed to separately fund the program, and is not permitted under Nevada law to pay for the vouchers as they have, 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 to religion” provisions like Nevada’s are common in many state constitutions, and 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 including the Baptist Joint Committee to speak out. The BJC filed a friend of the court brief urging the Supreme Court to reject the district court’s cramped interpretation of the no-aid provision.
In the ruling issued today, the Court did not comment on that specific dispute, and held instead 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. Here is an excerpt from the decision:
Once the public funds are deposited into an education savings account, the funds are no longer “public funds” but are instead the private funds of the individual parent who established the account. The parent decides where to spend that money for the child’s education and may choose from a variety of participating entities, including religious and non-religious schools. Any decision by the parent to use the funds in his or her account to pay tuition at a religious school does not involve the use of “public funds” and thus does not implicate Section 10.
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. The court’s definition of “public funds” may be too narrow for my taste, but the constitutional restriction barring government support of religion in Nevada remains otherwise largely intact.