Duncan v. Nevada

Last modified 2016.02.12

  • Status Closed
  • Type Counsel
  • Court State Court
  • Issues Public Schools, Religious Minorities, Taxpayer Funding of Religion, Vouchers

In June 2015, the Nevada governor signed into law S.B. 302, which created the Education Savings Account Program. Through the program, parents could receive money from the state’s public-school fund, which is deposited into an Education Savings Account, to pay for their children’s education at a religious private school. Once the private school received this funding, there were no prohibitions on how the public funds may be used, meaning that private schools were free to use these funds for religious instruction.

In August 2015, we joined with the national ACLU and the ACLU of Nevada to file suit on behalf of several Nevada residents. Our lawsuit argued that the Program violates the Nevada Constitution, which bars any public funding from being “used for sectarian purpose[s].”

Parents who wished to use the Program to send their children to private school intervened in the lawsuit, and both the parents and Nevada moved to dismiss the case. We filed a brief in opposition to their motion. We also moved for a preliminary injunction, to bar the state from releasing the funds.

The trial court held a hearing in December 2015. And in May 2016, the trial court ruled in favor of the state, finding that the voucher program did not violate the Nevada Constitution because the Legislature passed S.B. 302 into order to promote education, rather than to promote religion or religious observance.

Meanwhile, another lawsuit challenging the Program was filed on behalf of several parents of Nevada public-school students. This lawsuit contended that the Program violated yet another state constitutional provision, which requires public funding that has been appropriated for public schools to be spent on public schools alone. In this case, the trial court ruled in favor of the parents, issuing a preliminary injunction to halt the Program.

Both cases were appealed to the Nevada Supreme Court. In July 2016, briefing was completed and Americans United argued our case the same day that the other case was argued.

In September 2016, the Court ruled in our favor in both cases, permanently enjoining the Education Savings Account Program. The Court determined that the Program violated all the state constitutional provisions named by the two lawsuits except the constitutional requirement that public money not be “used for sectarian purpose.” The Court decided that by placing money in an Education Savings Account rather than sending money directly to the private schools in question, Nevada had ensured that the money was no longer public, but that the funding scheme nonetheless misappropriated state educational dollars.

The case was then remanded to the trial court, which issued a final order enjoining the voucher program in January 2017. This case is now concluded.

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The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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