Largely overlooked at first during all the congratulatory back slapping — which came with the news that Tesla Motors had built an earthen pad in

Thomas Mitchell

There is a reason the courts routinely expedite cases involving children. If the cases were handled in the usual mañana fashion the children would have children of their own by the time the case is resolved.

The state Supreme Court has rightly refused an effort by the American Civil Liberties Union to further delay the hearing of its suit to block enactment of the education savings account (ESA) law passed by the 2015 Legislature, which would allow parents to keep a portion of their taxes — about $5,100 a year in most cases — in a savings account to pay for private schooling or homeschooling.

Thus far about 6,000 students have applied for funding under the law but their applications are on hold, pending a ruling from the justices of the state Supreme Court.

The court has scheduled hearings for the morning of July 29 for both the ACLU case — Duncan v. State, which challenges the law as a violation of a constitutional prohibition against using state funds for sectarian purposes — and another case — Schwartz v. Lopez, which claims the law impermissibly diverts funds from the Distributive School Account (DSA).

The ESA is under the auspices of state Treasurer Dan Schwartz, who had hoped to make funding available by January 2016, but now the suits make it impossible for funding to start by the beginning of the new school year in the fall. Another delaying wrinkle is that the law requires eligible students to have been enrolled in public school for 100 consecutive days prior to receiving the funds. Who knows how many more parents could step forward in the future if and when the law is upheld?

The Schwartz v. Lopez case will be heard at 10 a.m. on July 29. In that case a Carson City judge blocked the state from carrying out the provisions of the law, saying it is unconstitutional under that Article 11, Section 6.2 of the state Constitution. He determined that “appropriation” means “to set apart for or assign to a particular purpose or use in exclusion of all others” and therefore using part of that appropriation for ESAs violates the state Constitution.
Attorney General Adam Laxalt, representing the state, has countered that the DSA is not, as the plaintiffs allege, a lock box from which no funds may be diverted, but rather funds public schools on a per pupil basis. If a student moves out of a district or transfers to a private school or homeschooling, the per pupil funding is affected in the same manner.

The case of Duncan v. State will be heard at 11:30 a.m., after Schwartz. This case raises the question of whether ESAs violate the Constitution’s prohibition against sectarian funding by noting that ESAs could be used to send children to religion-based schools.

Clark County Judge Eric Johnson, writing on the religious separation argument, said, “The United States Supreme Court’s ‘decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools, and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.’ … Where a school aid program, such as the ESA program, is neutral with respect to religion, and provides assistance available directly to a wide spectrum of citizens, or as in this case, essentially all parents of Nevada school children, who, in turn, direct the financial assistance to religion affiliated schools ‘wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge …’”

Judge Johnson also dismissed speculative claims that some private schools might discriminate by writing, “Whether illegal discrimination occurs and a school may participate under the program can be dealt with in the specific context of the facts of an actual controversy rather than in the hypothetical.”

The sooner this is resolved, the sooner parents and children can get on with education plans. May the court come down on the side of freedom to choose.

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