ESA update

Karen Gray

Hello All,

Last week was a busy week for the Education Savings Account lawsuits. Let’s take a look at what happened and what it all means.

In the Lopez case, the northern Nevada case which has the injunction, the Attorney General’s office (State’s attorney), on Tuesday, filed an unopposed motion with the Nevada Supreme Court seeking to postpone oral arguments until the last week of July. You may recall, oral arguments were set for July 8.

Resetting the oral argument to the last week of July was sought to allow the State’s counsel of choice, Mr. Paul Clement, who will be out of country on July 8, to present the State’s argument to the Court. Clement, outside counsel retained by the State is with the Bancroft law firm in Washington D.C., is a former United States Solicitor General and a renowned attorney who has argued upwards of 69 cases before the U.S. Supreme Court. For sure, a tremendous asset to our ESA legal team!

The AG’s motion also emphasized that moving oral arguments until late July could accommodate the Court’s previously stated preference to hear arguments in both the Lopez and Duncan cases on the same day should the ACLU appeal in Duncan (they subsequently did).

The following morning, Wednesday, the Nevada Supreme Court granted the State’s motion in Lopez, rescheduling oral arguments for Friday, July 29 at 10 a.m. Arguments will take place at the Regional Justice Center, located at 200 Lewis Ave —17th Floor, in Las Vegas.  Hey, if you’re thinking of going, let me know.

Then, on Friday, the ACLU finally filed its notice of appeal in Duncan, the ACLU case in southern Nevada which was dismissed by Judge Eric Johnson last month.

So, in summary, the Lopez case, and any decision lifting the injunction will be delayed. And if the court consolidates the two cases (a motion to do so still needs to be filed and granted) Duncan may proceed with a shortened briefing period. It’s not known yet if consolidating the arguments will further delay Lopez. But from reading the court exhibits filed with this motion (including email communications between the AG and the ACLU), it appears the ACLU is amenable to holding arguments for Duncan in late July.

Hopefully — fingers crossed — with this latest development, we are now on a single, expedited track to both decisions.

How does all this effect funding? Well… looks like November is the soonest.

When you really think about it, though, all the stars and planets would have had to align to fund in August. That’s not to say it couldn’t have happened. But, I am a realist. And, when you really think about it, any decision to meet August funding depended on the Justices returning a decision within a week. While that has happened before, it’s just not the norm.

Moreover, when you also consider that the closely related Duncan case would be simultaneously working its way through the Supreme Court’s briefing process, it seems not at all certain the Court would have turned around a decision too quickly. After all, justices might be thinking of the potential for new legal insight from Duncan. Courts don’t frequently just toss their “preferences” out into the universe. So this may be a big hint they want to consolidate.

A brief reminder: A few days still exist for you to get your applications turned in. Don’t let all the legal maneuvering dissuade you from applying for the program if you were thinking on it. This is just how the wheels of justice turn. Remember, applications must be stamped received in the Treasurer’s office by 5 p.m. on June 30th to be considered for this enrollment period.

Next week, I will be at the new David O. McKay Academy locations providing information on ESAs and helping with applications and document scanning. Details are still being finalized, so be sure to visit our Event page on for more information.

Stay Strong! And, #LetOurChildrenSuceed