Here is an exercise in creative and highly political decision making from the bench.
District Judge Eric Johnson upheld the state’s voucher plan and ruled that it does not violate the state constitution.
In an order dismissing a lawsuit challenging the legislation, District Judge Eric Johnson upheld the constitutionality of Senate Bill 302 as a program “neutral with respect to religion” because parents — not state actors — decide whether they will use an education savings account, or ESA, to pay for tuition at private and religiously affiliated schools.
Johnson also ruled a provision in the Nevada Constitution that charges state lawmakers with encouraging education “by all suitable means” permits the ESA program in addition to the public school system.
SB 302, passed in the 2015 Nevada Legislature, offers parents about $5,100 in per-pupil state funds to spend on private school tuition, home school expenses and other educational services if they pull their children out of a public school.
“The state has no influence or control over how any parent makes his or her genuine and independent choice to spend his or her ESA funds,” Johnson wrote in his decision.
“Parents, if they choose to use the ESA program, must expend the ESA funds for secular education goods and services, even if they choose to obtain those services from religion affiliated schools,” he added.
His ruling does not guarantee parents immediate access to the ESA program because a Carson City judge in January issued an injunction against its implementation in a separate case challenging SB 302.
Most of the money allocated to the Education Savings Account program will be spent in religious schools. But, not to worry, the instruction in religious schools will be secular, not sectarian. Got it?
Let’s see what the Nevada state constitution says.
Article 11 of the Nevada constitution declares:
Sec: 9. Sectarian instruction prohibited in common schools and university. No sectarian instruction shall be imparted or tolerated in any school or University that may be established under this Constitution.
Section Ten. No public money to be used for sectarian purposes. No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.
[Added in 1880. Proposed and passed by the 1877 legislature; agreed to and passed by the 1879 legislature; and approved and ratified by the people at the 1880 general election. See: Statutes of Nevada 1877, p. 221; Statutes of Nevada 1879, p. 149.]
Do you see any ambiguity here? Do you see a constitutional clause that is permissive? Is the phrase “No public money to be used for sectarian purposes” ambiguous?
You be the judge.
Diane Ravitch's blog 
Wish I could be. In another life perhaps. The salesforce for this kind of thumb your nose at the state (or federal) constitution is formidable.
I predict voucher-mania will spread like wildfire in our statehouses, to go along with charter-mania. So much for the old “improving public schools” campaign talking point.
Catholic schools in Ohio want to fire teachers for even supporting a gay child. Yet the dioceses want taxpayer money. If vouchers go into effect, private schools receiving should have elected, public governance. Taxation with representation, and all.
MathVale, the so-called “public” charter schools don’t have elected, public governance. Why would we expect private parochial schools receiving public money to have such governance?
Ain’t gonna happen.
If it goes to the people, it has ALWAYS failed. I think Nevada needs to do what Utah did–get the law on the ballot. It took a lot of time and money (NEA helped out with the money), but Utah beat back vouchers. The legislature has done a lot to punish teachers for that, but they haven’t dared bring up vouchers in the 10 years since.
If lawmakers have abandoned public schools can public schools abandon lawmakers?
Seems fair to me.
But again, WHY have the public schools not retained the support of all the public, even the religious parents? Perhaps because the old non-sectarian schools at least taught traditional Protestant virtue, Pledge of Allegiance, prayer, self-restraint, individual virtue, decency, decorum, submission to authority. Now, under the mask of ‘think for yourself,’ we get permissiveness, progressiveness, and anything goes. A non-sectarian classroom still can teach ‘virtue’ even if it avoids promoting specific sects. Interpreting ‘non-sectarian’ as ‘atheistic socialism’ modern public schools lost their constituency.
Nevertheless, this decision opens the way to state supported religious instruction no matter which way you look at it, and that’s not a good thing.
Public schools need to look in the mirror and undertake serious self-examination. The progressive, liberal ethos has destroyed their credibility as institutions promoting civil society. Maybe. Just trying to figure it out.
Not sure what you mean. Schools still say the pledge in our area. We have American and state flags flying outside. Students are free to practice religion or not, they just can’t force their beliefs on others. That, to me, seems much more in line with the Founders fear of a state religion. The values you mention should be taught by parents (sorry, they aren’t on the test). You seem to advocate an authoritarian, theocratic, oppressive educational system. Is that your point?
The Founders did indeed fear a state religion, an established religion, but they did not fear, and in fact presupposed and promoted, a pervasively religious and virtuous electorate, which is a much different thing than ‘secular’ schools. Non-sectarian, in the sense of not Methodist, not Presbyterian, and certainly not Catholic, is not the same thing as secular, and secular in the sense of teaching only intellect but not morals was horrifying and anathema to them. The gospel of non-sectarian schools was basically protestant individualism and capitalism. Nowadays there is no gospel beyond climate change and diversity is there? Teachers still support Obama. The rest of the country is sick of him. Why protect public education teachers against predators like Gates and Pearson when they have been captured lock, stock, and barrel by Obamanistas, or Sandersistas, or Clintonistas? It’s illogical because it is against their own interests, but there it is as the book on Kansas pointed out.
HU,
Your take on what happens in the public school system is way off other than the not teaching/preaching religion which is the way it should be. There is no “progressive liberal ethos” that I’ve seen in 21 years. Most teachers are quite conservative by nature, actually and I’ve never seen one who didn’t agree with, Pledge of Allegiance (except me), . . . , self-restraint, individual virtue, decency, decorum. . . .
Now “Protestant virtue” whatever that is-is it the same as the Catholic virtue I was supposed to learn in Catholic schools?-, prayer, and submission to authority are the last things that should be taught in public schools. If there is one thing I learned well in my K-12 Catholic education, it was, very unintended indeed, to question authority because those in authority needed to be questioned. And they still do.
Yes, I used to challenge my students to question what I said and taught. And you’d better believe I almost always had a response that made sense to them, but the important part was the question and questioning attitude. To me that’s part of a vibrant education!
You’re smoking something, HU. In most states, it’s required to say the Pledge of Allegiance in every school every day. And kids can pray anytime they want.
Can the principal?
J. H. Underhill
We can infer from your claims that there are no ethical or moral lessons to be had in the history or social studies curriculums of today, that scholarly examinations of the failures of policy makers and of public opinion that lead to the violations of the natural and constitutional rights and to outright crimes against a particular group are somehow possible without any examination of the intellectual, moral and ethical failures that lead to and caused the events in question. The history of the planet is replete with examples, here in America the Dred Scott decision and the internment of Japanese Americans come to mind, and they are barely the tip of the iceberg. Your strawman arguments, revisionism and false categorizations are rejected as being just that.
Using what criteria of ethics? Certainly not Christian.
J. H. Underhill
BTW, the founders did not fear a state religion, they feared religion infiltrating and co opting the state, the very thing you and too many others advocate for with your revisionism.
Anti sectarianism was what was enshrined in the constitution, not anti religionism in the souls of the citizens. Religion tends to be a kind of poetic shorthand for ethics which most people can’t work out philosophically. The masses can’t think ethically without it. I sometimes wonder whether anyone can. What’s your view of how ethical standards secure voluntary allegiance?
J. H. Underhill
How did the ancient Greeks live ethical lives without religion? We are all still standing on the shoulders of men like Plato and Aristotle, and their study of ethics and writings on the subject did not have a basis in religion. Ethics and morality are not owned by let alone the sole province of any religion, it is entirely possible to live a just life without any faith in God or guidance of a faith based doctrine.
I don’t know enough about Aristotle to judge whether he was secular, but about Plato I must disagree. The Socrates in his dialogues is deeply religious, but not in the older Homeric way. Some argue that Christianity is simply a remythologized Platonism.
The ancients don’t prove your point. Whether a non-religious ethic is possible for most people remains undecided. Would it were so, but I doubt it is. How many ethical atheists do you know? How many religious evil people do you know? Hypocrites don’t count.
J. H. Underhill
These cases need to go up the judicial ladder so they can be heard in federal court. First of all, they would be more likely heard by an impartial judge. Secondly, vouchers are a violation of church and state, and a federal judge is more likely to render a decision relating to federal laws.
Can’t wait for the first voucher for a Satanic temple, Wahhabi school, or Church of the Blessed Beer Can to apply. Conservatives will turn blue.
There is a Church of the Blessed Beer can?
Where is it located?
How do you join?
Do you have to get baptized with a Budweiser poured over your head perhaps?
Or is it open to anyone who likes beer?
I’m asking for a friend, of course.
Seems to me that this is a strictly state constitutional issue that needs to be decided at the state level by the state’s supreme court. And as Diane has pointed out, the constitutional wording seems to be rather strong on this issue notwithstanding that judge’s bizarre interpretation.
SomeDAM Poet, puh-lease, not Budweiser!
Jon,
What else will you do with the Bud, you’re not planning on drinking it are you?
I was planning on leaving it on the store shoves to gather dust.
The religious right has been on a crusade since the mid 70s to get the “right” kinds of judges put in place to do their work of shredding constitutional language with regards to a separation of church and state. Christian/Zionist/Islamist fundamentalists are cut from the same cloth. Praise be their supposed lord!
I’m coming to Missouri this summer, and Duane, I understand that drinking a Bud is truly considered alcohol poisoning!
Let me know if you would like to know anything about the Show Me State.
I’d be more than happy to take you and everyone else that might be with you on a canoe float if you would like. Wouldn’t be anything fancy but a leisure float down a beautiful spring fed Ozark stream.
Not sure what law school Eric Johnson went to, but obviously missed or failed the Con Law class. If he’s an elected judge, he needs to be voted out. What is really puzzling and strange is that this new breed of judges believes they are above the Constitution which they swear to uphold. Kind of like law makers who say they will appeal SCOTUS decisions. We really have become: Idiot American!
Everywhere I turn, pubic education is under attack: from the highly organized efforts of hedge fund managers to undermine democratically-governed public schools to continued emphasis on high-stakes testing to renewed efforts to promote vouchers to budget cuts with a racial and socio-economic bias.
This is especially infuriating because we know more now about what we could to do to promote systemic equity than ever before. We know more about teaching and learning than ever before. As a nation, we are following a bi-partisan ideological agenda in willful ignorance.
Articles I read today and yesterday brought be back to a related article I wrote in 2013 on the theme of, “It is indeed the best of times and worst of times.” Sadly, the worst of times part has only accelerated.
US Education: The Age of Wisdom and Foolishness http://www.arthurcamins.com/wp-content/uploads/2013/08/US-Education-2012-The-Age-of-Wisdom-and-Foolishness-2.pdf
On a brighter note, the growing impact of the Opt-Out Movement gives me hope– adding force to the best of times perspective. We need a similar movement of resistance to the assault on the institution of democratically governed public schools.
http://www.arthurcamins.com
Parochial schools are a form of segregation since many parents don’t won’t their darlings mixing with the hodge pose of beliefs found in children at the public schools.
Home instruction might be even worse as parents carefully select which children their own kids are allowed to meet. Not only people but ideas are circumspect.
While it is a right to choose which education system a particular family wishes to pursue, I don’t feel compelled to pay for this choice when public schools are available.
The Broward County School Board chair at the Calvary Chapel. At 50:45 she says,
“God has really blessed me this year that a lot of my principals were transitioned out, and he filled those spots with new principals that were saved. Principals that loved the lord.”
[video src="http://podcasts.calvaryftl.org/sanctuary/v/D3201_700.mp4" /]
Are we really allowed to have a criterion in public schools that principals have to be saved before giving them a job? Won’t need vouchers if that is the case.
Note: The previous pastor of this church resigned after it was disclosed he was committing adultery.