The Education Law Center reports that the Nevada Supreme Court will review a lower court decision that enjoined the state’s new voucher program. Nevada’s legislators enacted the most sweeping voucher program in the nation, despite the fact that the state constitution says unequivocally that public money appropriated by the legislature is to be used only for public schools. Now, we will learn whether conservatives are serious when they claim to believe in a “strict” interpretation of the federal and state constitutions. Even as conservatives celebrate the late Justice Antonin Scalia for his “originalist” interpretation of the Constitution and laws, conservatives in states like Nevada are twisting and ignoring their state constitution to destroy public education. The same thing happened in Indiana, where the state constitution was written to prevent public funding of religious schools. The court, dominated by conservatives, found a way around the clear words of the state constitution to allow the new voucher program to proceed. At the very least, they could call a referendum to change the state constitution, but they didn’t and they won’t. That might lead to a loss, as it has for every voucher referendum. Original language be damned.


Nevada Attorney General Adam Laxalt has asked the State Supreme Court for expedited review of a preliminary injunction blocking implementation of Senate Bill 302, the State’s unlimited private school voucher law.

In response to the Attorney General’s request, the Nevada Supreme Court has scheduled the parties to file briefs by early April. The Supreme Court has deferred oral argument on the case until the Court has the opportunity to review the briefs.

The lawsuit, Lopez v. Schwartz, was filed by five parents of public school children from across the state. The parents challenged the vouchers authorized by the law, called Education Savings Accounts (ESAs), which would be paid for by taking funds allocated by the Legislature for the public schools. The parents claim that ESAs, by diverting funding from public schools, will trigger cuts to essential programs and services and cause harm to their children and other children attending Nevada’s public schools.

In October 2015, the Plaintiff parents moved for a preliminary injunction to block State Treasurer Dan Schwartz from implementing the ESA law. The State Treasurer had set February 1, 2106, as the date to begin taking public school funding to pay for ESAs. The Treasurer has estimated that ESAs would result in a $17 million reduction in public school funding in 2016 alone, and that amount is expected to significantly increase in future years.

On January 11, 2016, Judge James Wilson of the First Judicial District Court in Carson City ruled the Plaintiff parents demonstrated that ESAs likely violate two provisions of the Nevada Constitution.

Judge Wilson explained that the Nevada Constitution requires the Legislature to appropriate funds for the operation of the public schools, which “must only be used to fund the operation of the public schools.” The Court continued that, if implemented, ESAs will mean “some amount of general funds appropriated to fund…the public schools will be diverted to fund” ESAs, and that this diversion of funds will reduce public school funding below the level deemed sufficient by the Legislature.

Judge Wilson also found that the parents “have [proven] that SB 302 violates Article 11, Sections 6.1 and 6.2” [of the Nevada Constitution], and that ESAs will cause irreparable harm to public school children. Judge Wilson issued an injunction to prevent the State Treasurer from implementing the law.

While other states have enacted various types of voucher programs, Nevada is the first to directly take funding from public schools to pay for private schooling. Nevada’s ESA program also has no cap on the amount of funding that can be taken from the public schools, or any income limits on households that can qualify for a voucher.

The public school parents are represented pro bono by Education Law Center; Munger, Tolles & Olsen in Los Angeles; and Wolf Rifkin in Las Vegas. ELC is also a partner in Educate Nevada Now!, a campaign to improve educational opportunities for Nevada public school children, with support from the Rogers Foundation.

For more information about the Lopez v. Schwartz voucher case, visit these pages on the ELC website.

Education Law Center Press Contact:
Sharon Krengel
Policy and Outreach Director
973-624-1815, x 24