Duncan v. Nevada, Lopez v. Schwartz

Expanding educational opportunities for Nevada students

Like any other state, Nevada seeks to provide quality education to students of all incomes.

So in 2015, the state of Nevada established the Education Savings Account (ESA) program, which allocates money into a specified bank account for each child that, similar to a medical flexible spending account, parents can use only for education expenses such as tuition for private schools, books and tutoring.

The ESA program has allowed thousands of children to seek better educational opportunities, such as by seeking a private school education at a school of their choice.

Meet the activists who want the program gone

Yet not everyone is happy. The American Civil Liberties Union (ACLU) and the Americans United for the Separation of Church and State are suing to end Nevada’s ESA Program. Why? Because the program uses state funds toward services that may be religiously affiliated.

The activist groups are using a 19th century state law with anti-Catholic roots called the Blaine Amendment, which prohibits the use of state funds toward “sectarian” schools. The law was originally enacted – and successfully used – to shut down an orphanage run by Catholic nuns. In the 1880s, forbidding “sectarianism” meant forbidding anything remotely Catholic, but now activist groups are using the term to single out any school that is “too religious.”

Both interpretations are in direct violation of the U.S. Constitution’s Equal Protection Clause.

Becket defends religious schools, and the students who choose them

It is not up to the state to block schoolchildren from religious influence. Every child has the right to seek a better education, whether it is at a religious school or not. Becket is standing up to this blatant discrimination against religious schools and the students who choose them, and is urging the dismissal of this case.

On October 28, 2015, Becket filed an amicus brief  in  Duncan v. Nevada  in Nevada state court, stating, “To claim that the ESA Program funds ‘sectarian’ purposes is simply a modern spin on the same discrimination that birthed the Blaine Amendments.”

On May 18, 2016, that court dismissed the challenge to the ESA program, ruling that Nevada’s Blaine Amendment could not be used to stop neutral programs that allow parents to choose how to use their education funds. In September 2016, the Nevada Supreme Court ruled that the ESA program did not violate the Blaine Amendment, because once the funds reach the parents’ hands they no longer constitute state money, but private funds to be put toward a child’s education. The Court’s decision means that once the State corrects the fund appropriation process, the program can move forward and benefit schoolchildren statewide.

In a related case, Lopez v. Schwartz, the district court granted temporary relief to the schools and students challenging Nevada’s ESA program. That case is now headed for the Nevada Supreme Court.

Nevada’s Office of the Attorney General and Bancroft, PLLC (Paul Clement) represented the state.

Importance to Religious Liberty: 

  • Education: Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools. 
  • Dismantling discriminatory state laws: So long as anti-religious laws from the mid-19th century called Blaine Amendments remain in the books, people of all faiths can face discrimination, simply because they choose to attend a religious school.