Last week, a Clark County judge threw out a constitutional challenge to Nevada’s landmark education savings account program. The ACLU and aligned groups had argued that ESAs violate two sections of Nevada’s constitution—a provision that the state provide a “uniform system of common schools,” and a “Blaine” Amendment that prohibits tax dollars from going to religious schools. The judge ruled that it violated neither.
With respect to a uniform system of public education, Judge Eric Johnson argued “The Legislature can provide for a uniform system of common schools, free from religious instruction and open to general attendance by all Nevada children, and still adopt other suitable means of encouraging education.” Pretty airtight logic there.
With respect to the state’s Blaine Amendment, as my friend Jason Bedrick points out over at the Cato Institute’s blog, the court argued that the state’s Blaine Amendment “was not intended to preclude any expenditure that has an incidental benefit to religion, where such is made for a primary secular purpose.” It built upon this reasoning by arguing that the ESA “was enacted for the valid secular purpose of providing financial assistance to parents to take advantage of educational options available to Nevada children.” The fact that some religious organizations might benefit is “ancillary and indirect.” Game. Set. Match.
This ruling matters for those of us hoping to see an ESA program created in Missouri. Missouri has an extremely restrictive Blaine Amendment that libertarian legal scholars have feared would preclude any kind of private school choice program that is not funded through tax credited donations. If the standard jurisprudence on these programs concludes (correctly, I’d argue, for what its worth) that ESAs are created primarily for the secular purpose of educating children and that religious organizations only benefit second-hand, it might change the state of play here.
All told, last week was a great one for school choice, and I hope that the Judge’s decision will be supported if and when his ruling is appealed.
