September 1, 2015

The battle over school choice begins in Nevada

By Ethan W. Blevins Attorney

The ACLU plans to sink school choice in Nevada. In June, Nevada passed the nation’s first universal Education Savings Account. The law allows students to take their allotment of per-pupil public school funding and direct it towards tuition for the school of their choice. In short, it offers a lifeline to parents and kids who want to make their own choices about building a child’s future. The ACLU sued last week to invalidate the school choice law.

The lawsuit recites a strident refrain from school choice opponents. Public funds that help students afford a school of their choice, they argue, violates the separation of church and state. The ACLU relies on the Nevada Constitution’s “Blaine” amendment, which says, “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.” Similar Blaine amendments prohibiting government funding of religion exist in many states. The ACLU argues that the Education Savings Account violates this law because students who receive the boon of state assistance might choose a religious school.

This argument buckles under the weight of scrutiny. The  Education Savings Account has no “sectarian purpose.” It exists to foster opportunity for kids. If families make the independent choice to attend a religious school, that choice does not alter the law’s purpose. Calling a student’s choice of a religious school a state subsidy to religion is like calling an employer a drug dealer because an employee used his paycheck to buy meth.

Ironically, Nevada’s Blaine amendment has its own “sectarian purpose.” Nevada’s law prohibiting use of public funds for religious purposes is rooted in religious discrimination. Inspired by anti-Catholic bigotry, the Blaine amendment was designed in the 19th century to preserve Protestant dominance in education and prevent public funding of Catholic schools. It’s ironic that the ACLU relies on this “shameful pedigree” to fight a program that neither favors nor discriminates against any religion. All students under Nevada’s program can use the tuition dollars to attend any school on an equal basis, religious or not.

In fact, if Nevada courts decide that the Blaine amendment forbids the Education Savings Account, then the anti-Catholic provision could violate the First Amendment. The First Amendment prohibits discrimination against religion. Denying students precious tuition dollars that could rescue them from a failing school just because they might attend a religious school sounds like discrimination to me.

Nevada’s bold step toward genuine choice deserves a chance. We cannot find solutions to the problems plaguing schools without experiments like the Education Savings Account. The courts of Nevada shouldn’t let a bogus legal theory stand in the way of innovation.

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