This past summer, the American Civil Liberties Union (“ACLU”) launched a law suit against Nevada’s newest school voucher law. A little while ago, I shared my thoughts on the Nevada School Voucher program (here). As Nevada high school graduate I grew up in private Christian school (PA Owens Christian Academy, Class of 2011) and I have seen first had the benefits in education private schools can render with respect to Nevada public schools. However, the opposition from ACLU is not that of a question of efficiency, but rather its constitutionality.
Nevada’s Constitution states that “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.” The law allows parents to utilize state funds to send their children to private schools, including religious affiliated schools. ACLU is adamant that Nevada’s school choice program violates this clause and is therefore unconstitutional. At first glance, it may appear that the voucher law violates this clause, if parents are allowed to send their children to religious affiliated, private schools. However, there may be a chance that the Nevada voucher program survives this challenge. In law there are two ways to interpret a statute: (1) plain meaning of the law or (2) the context surrounding the law when it was passed. Laws can be ambiguously written and therefore interpreted incorrectly as to how they apply in certain situations. When a judge or lawyer argues solely on the merits of the plain meaning of a law and ignore the context in which it was written, its jurisprudence can be threatened. To better explain this, I will demonstrate with a common example the ambiguities that can exist within this flawed view of legal reasoning.
The law of city X states that “there shall be no vehicles in the Greendale Park, whatsoever.” On June 1, 2009, Mrs. Parker brings her two year old son to Greendale Park to practice riding his tricycle. A city marshal issues her a citation for having a vehicle in the park, since according to that city’s laws; a tricycle is defined as a vehicle. Mrs. Parker goes to court to fight the fine. Her lawyer points out that while the plain ordinary meaning of the law does prohibit any vehicles in Greendale Park, the public records show that the reason that is law was passed was a former city council wanted to address gas emissions from cars in Greendale park in order to preserve its wildlife and plants. The judge agrees with the context of the law, determines that a tricycle in the park does not meet the reasoning behind this law, and nullifies the fine.
A similar and better detailed example is explained in Getting to Maybe and further explains the importance of the context of a law, not just its plain meaning. The arguments, so far, that have been expressed by ACLU address only the plain meaning of the textual structure of the Nevada Constitution. The context in which this constitutional clause was drafted has yet to be explored. While it may appear on the surface that this free-choice law may be unlawful, proponents on the other side of this law suit may have an opportunity to strongly combat the ACLU.
Furthermore, this law is crafted in a way to avoid constitutional violations in that the money used for this program goes directly to parents and it is their choice to use these funds at the school of their choosing. This transfer of funds calls into question if the money is still state money or if they are earmarked funds controlled by parents? Lastly, the law was passed to improve education, not to sponsor or favor any form of religion. Senator Scott Hammond (R), who sponsored this law, makes a compelling argument comparing the nature of this statute to the way Medicaid pays religious hospitals to care for patients (Las Vegas Sun, 2015).