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ACLU vs. Nevada Families: Another Big Anti-School Choice Case to Wait Out

The Pope is Catholic. The sun rises in the east, and sets in the west. The grass is green, the sky is blue. And certain parties will sue groundbreaking educational choice programs that promise to help give kids more opportunities.

Two months ago, an ACLU-initiated case against the Dougco Choice Scholarship Program prevailed in the short term, while opening the door to a potential major national victory. A few weeks later, a similar program in North Carolina survived a legal assault.

Before that, the ACLU’s efforts to take away tax credits for K-12 scholarship donations was smacked down in New Hampshire, while the union and school board association in case in Florida has stumbled but lives on in the form of distorted arguments about the Sunshine State’s tax credit scholarships.

So who out there was surprised when late last week the ACLU announced they were gunning to take down Nevada’s cutting-edge Education Savings Account program in the courts? Anyone?… Bueller?… Bueller?… (I learned that one from my Dad.)

As is typically the case, the defenders of choice make their case on the basis of students and families. Opponents, like the one quoted in the Las Vegas Review-Journal, are all about defending a system:

Sylvia Lazos, policy director for Educate Nevada Now, said drawing money out of traditional school districts and using that for private education contradicts a constitutional requirement that lawmakers “sufficiently” fund public schools.

Additionally, Lazos noted the State Board of Education, which regulates and monitors all public schools in Nevada, has no authority to track student performance, modify curriculum standards or set other requirements at private schools.

The ESA amounts, while healthy, are capped at lower amounts than the state’s public school per-pupil funding. So it’s hard to see how you can make a case that it deprives schools of being funded “sufficiently.” Unless you want to argue the system deserves to keep funding when students leave while simultaneously ignoring that the system gets more funding when more students enroll. It works both ways, you know.

The good news is that the Institute for Justice and its respected track record quickly leaped into the fray to defend Nevada families who were seeking the flexible arrange of options afforded by the new program. IJ attorney Tim Keller points out the strong precedent on the defendants’ side:

The Institute for Justice has repeatedly turned back similar legal attacks against educational choice programs across the nation, and we intend to do the same here. Most relevant to today’s lawsuit is the Institute for Justice’s successful defense of Arizona’s ESA program, upon which Nevada’s program is modeled. Just like Arizona’s ESA program, Nevada’s ESA program does not set aside a single dollar for religious purposes, but instead gives parents a genuine choice as to how to spend the money deposited in their child’s education savings account.

The leader of the group that created the Parent Power Index also issued an effective statement that could be repeated every time the ACLU files one of these lawsuits:

“It’s sickening that a group with the slogan of protecting individual rights and liberties is in fact doing the opposite and challenging a program that would give parents the freedom to exercise their right to ensure their child gets the best education possible,” said [Center for Education Reform] president Kara Kerwin (@CERKaraKerwin).

In any case, the legal action probably only figures to delay the takeoff of family-empowering ESAs in Nevada, especially given the “wait-and-see” attitude out there that understandably comes with a paradigm shift of this kind.

But if there’s one thing this little guy has had to learn in the big, ongoing fights over school choice that rage from state to state, it’s the need for patience. The good news is supporters of parental choice and educational freedom are on the right side of history. We’ll just have to ride out another big bump in Nevada first.