Nevada’s Supreme Court justices heard arguments in two different cases this past week on whether to uphold the state’s education savings account (ESA) program as constitutional.

Paul Clement, a former U.S. solicitor general who defended the law on behalf of the Nevada attorney general, opened the first hearing, the case of Schwartz v. Lopez, by noting, “Nevada’s system for educating students in grades K through 12 is in a state of crisis. No one seriously disputes that reality. By many measures Nevada has the worst education system in the country. Nevada’s response to this crisis last year was a multi-faceted reform package with an innovative education savings account program at its core. But while the ESA program has raised the hopes of countless Nevada students and their patents, it has not gone into effect for one and only one reason — the district court’s counterintuitive reading of Article 11, Section 6.”

A Carson City judge had blocked the creation of ESAs over that portion of the state Constitution.

Clement said Section 6 requires the Legislature to do only three things: Fund public schools and universities. Fund public schools before any other appropriations. Fund public schools in an amount the “Legislature deems to be sufficient.”

Senate Bill 515, which established funding for the distributive school account (DSA), was the first appropriation bill passed, and the Legislature deemed it sufficient, Clement argued.

SB515 established a statewide average per pupil funding of about $5,700 in the DSA.

Under questioning by the justices, Clement also pointed out that the education savings account bill, Senate Bill 302, was passed three days prior to the appropriation bill. It set out that most students pulled from public schools and educated in private schools or at home could draw up to 90 percent of that $5,700, or about $5,100, for an ESA from DSA. Thus, lawmakers knew precisely what they were appropriating on a per pupil basis.

But District Judge James Wilson of Carson City in his injunction blocking enactment of the ESAs declared that “appropriation” means “to set apart for or assign to a particular purpose or use in  exclusion of all others.”

Later, in the Supreme Court hearing, under questioning by Justice James Hardesty, attorney Tamerlin Godley, representing those trying to overturn the law, argued, “The first appropriation has to be only for the operation of the public schools. …The money can’t come out of public schools and it can’t diminish what they appropriated as sufficient …”

Clement countered that the Constitution does not say that the DSA has to be used for public schools exclusively. “DSA is just an account, and they put money in there for two purposes, knowing it was sufficient for both purposes,” he said. “And that’s the way it should be analyzed in that issue.”

Asked about the public school funding having to be first, Clement offered, “We think, just like at the Olympics, if there’s a tie for first, you’re still in first.”

Clement went on to argue that lawmakers did not know how many ESAs there would be so they funded both public schools and ESAs on a per pupil basis in the DSA account, deeming the funding sufficient for both purposes.

Less than an hour later the court heard Duncan v. State Treasurer, brought by the American Civil Liberties Union, which claims ESAs violate the constitutional prohibition against using taxpayer funds for sectarian purposes.

A Clark County judge in May dismissed that argument, saying ESAs are neutral on the matter of religion.

Richard Katskee of Americans United for Separation of Church and State argued that the state strictly maintains ownership and control of ESAs, meaning they are public funds, even though parents designate where to send the checks.

Tim Keller, an attorney with the Institute for Justice who is representing parents who want ESAs upheld, told the court,“The fact is, not one dollar will reach a religious institution except by the private choice of parents.”

Keller argued that parents know best how to educate their children. “My clients are trapped in chronically poor performing schools based on nothing more than their ZIP codes, based on nothing more than where they live right now. This program gives them the opportunity to escape those schools,” Keller concluded.

The lawmakers knew what they were doing and the justices should not undo their effort to provide education choices based on frivolous technicalities.

Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at He also blogs at