Nevada Vouchers and More: Making Public Funds Private
On September 29, 2016, the Nevada Supreme Court issued a permanent injunction against the state’s voucher, program, called the Education Savings Account (ESA) Program, also known as SB 302.
What is interesting about the ruling is that the Court did not find that the ESA Program violated the section of the Nevada Constitution prohibiting use of public money for sectarian purposes (Article 11, Section 10: “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.”)
As stated in the Nevada Supreme Court decision, the public money is not considered to be public because it was given from public coffers to parents:
We also conclude that funds placed in education savings accounts under SB 302 belong to the parents and are not “public funds” subject to Article 11, Section 10.
Thus, if the money does not travel directly from the public coffers to the religious school, then, according to the Nevada Supreme Court, the money is not “public money being used for sectarian purposes.”
The Nevada Supreme Court did find the ESA Program unconstitutional because it diverted money intended to fund public education from public education:
The issue remaining relates to the funding of the education savings accounts. Based on the State Treasurer’s concession that SB 302 does not operate as an appropriation bill, and that nothing in the legislative measure creating the State Distributive School Account funding for public education provides an appropriation for education savings accounts, we must conclude that the use of money that the Legislature appropriated for K-12 public education to instead fund education savings accounts undermines the constitutional mandates under Sections 2 and 6 to fund public education. Accordingly… we remand each case for the entry of a final declaratory judgment and a permanent injunction enjoining the use of any money appropriated for K-12 public education in the State Distributive School Account to instead fund the education savings accounts.
So, in order for Nevada’s ESA Program to survive, it must be funded from money specifically appropriated for the program, not from money earmarked to fund the state’s public schools.
But back to the laundering technique that makes public money “not public.”
In May 2013, the Louisiana Supreme Court declared Louisiana’s voucher program unconstitutional by a vote of 6 to 1 for a reason similar to the Nevada Supreme Court ruling: the vouchers took from funding designated for public schools. However, the Nevada Vouchers and More: Making Public Funds Private | deutsch29: