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.