In 2015, Nevada lawmakers passed the most ambitious educational choice law in the nation: a nearly universal education savings account (ESA) program. The program was scheduled to launch this year, but it immediately drew two separate lawsuits from opponents of educational choice. Last week, the Supreme Court of Nevada upheld the constitutionality of the ESAs, but ruled that the program was improperly funded. Choice opponents were quick to declare that the ESA program is dead, but as Tim Keller of the Institute for Justice noted, the program is only mostly dead, which means it is slightly alive.

Whether the program is fully revived depends entirely on the lawmakers who won plaudits for enacting it in the first place. On Monday, the legislature will meet in a special session to consider whether to subsidize the construction of a football stadium for the Raiders. Fixing the ESA funding would be a much more productive and beneficial use of their time. Sadly, Governor Brian Sandoval announced this week that ESAs would not be on the agenda:

Passage of Education Savings Accounts (ESAs) set a national precedent for school choice and symbolized a significant step toward education equality for every student. I recognize the magnitude of this sweeping policy measure and consider it a major component of the reform package ushered in during the last legislative session. Protecting this program is a top priority for me. There is simply not enough time to add it to next week’s Special Session with full confidence that a rushed outcome will pass constitutional muster.

Instead, the governor is launching a working group to fix the funding issue at a later date and he pledges to include the ESAs in his final budget recommendations for the upcoming biennium. There’s only one problem with this plan: the new legislature next year might not be as supportive of educational choice as the present one. If Gov. Sandoval and legislative leaders fix the funding issue now while they have legislative support for the program, they will cement their legacies in the history of education reform. If they fail to do so and the next legislature blocks efforts to fix the funding issue, their legacy will be a massive squandered opportunity.

There’s no need to roll the dice. There are various constitutional ways the legislature could fix the funding issue through existing or new funding streams while still saving the state money. The state supreme court barred the legislature from diverting funds that it had already committed to meet the basic funding requirements of the district school system, but otherwise left the door open to various funding possibilities.

At the very least, the legislature could fund the accounts via tax credits. As Jonathan Butcher and I described in a report we published earlier this year, the state could offer tax credits to individuals and corporations who donate to nonprofit scholarships organizations that could manage the ESAs, similar to tax-credit scholarship programs already in effect in 17 states. Florida’s ESA program is already managed by the scholarship organizations that participate in the state’s tax-credit scholarship program, and Nevada has a similar tax-credit scholarship program that has been in effect for more than a year. 

If the Nevada legislature has the time to waste on subsidizing football stadiums for billionaires at taxpayer expense, then surely they can find the time to fund ESAs for children who want a better education while saving the taxpayers money.