(Guest Post by Jason Bedrick)
The American Civil Liberties Union announced today that it is filing a legal challenge against Nevada’s new education savings account program. The ACLU argues that using the ESA funds at religious institutions would violate the state’s historically anti-Catholic Blaine Amendment, which states “No public funds of any kind or character whatever…shall be used for sectarian purposes.”
What “for sectarian purposes” actually means (beyond thinly veiled code for “Catholic schools”) is a matter of dispute. Would that prohibit holding Bible studies at one’s publicly subsidized apartment? Using food stamps to purchase Passover matzah? Using Medicaid at a Catholic hospital with a crucifix in every room and priests on the payroll? Would it prohibit the state from issuing college vouchers akin to the Pell Grant? Or pre-school vouchers? If not, why are K-12 subsidies different?
While the legal eagles mull those questions over, let’s consider what’s at stake. Children in Nevada–particularly Las Vegas-–are trapped in overcrowded and underperforming schools. Nevada’s ESA offers families much greater freedom to customize their children’s education–-a freedom they appear to appreciate. Here is how Arizona ESA parents responded when asked about their level of satisfaction with the ESA program: 
And here’s how those same parents rated their level of satisfaction with the public schools that their children previously attended:
Note that the lowest-income families were the least satisfied with their previous public school and most satisfied with the providers they chose with their ESA funds.
Similar results are not guaranteed in Nevada and there are important differences between the programs–when the survey was administered, eligibility for Arizona’s ESA was limited only to families of students with special needs who received significantly more funding than the average student (though still less than the state would have spent on them at a public school). By contrast, Nevada’s ESA program is open to all public school students, but payments to low-income families are capped at the average state funding per pupil ($5,700). Nevertheless, it is the low-income students who have the most to gain from the ESA–and therefore the most to lose from the ACLU’s ill-considered lawsuit.
(First posted at Cato-at-Liberty.)
Jay P. Greene's Blog 
It is unfortunate that ACLU that used to take a stand against reprehensible religious-zealotry, changed over time to represent reprehensible secular-zealotry.
I’m guessing that Zelman v. Simmons-Harris doesn’t apply because the suit’s filed in a state court. I’m just wondering if the federal decision would be likely to exert any influence even if it carries no official weight?
Children in Nevada–particularly Las Vegas-–are trapped in overcrowded and underperforming schools.
So you create the conditions then condemn them as though you had no part in them.
Fascinating.
Nevada, like all other states, decides school funding through a democratic process. They elect lawmakers, vote on bonds and overrides, etc.
Jason however lives in a state that neighbors NV and did not even participate in this process, much less “create the conditions.” But….no need to complicate a good story with facts or logic. Please skip ahead to the part where the unicorn saves the day.
Zelman doesn’t apply because the Supreme Court has specifically never made a decision on Blaine Amendments. The closest they came was Locke v. Davey; however in their decision they stated they were not deciding on the constitutionality of vouchers or Blaine Amendments, only if the decision of the lower WA court was aligned with the WA constitution. That’s why Blaine Amendments still exist in state constitutions all over the country and voucher plans will always face lawsuits.
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