Public education superintendent: Wait till next season

Losing sports teams are wont to declare: Wait next season.

Losing education systems are not much different.

After Education Week’s 2018 Quality Counts report ranked Nevada dead last in education quality, behind all 50 states and the District of Columbia, Nevada Superintendent of Public Instruction Steve Canavero proffered in a press release: “Nevada’s poor rating in School Finance doesn’t take into account the new programs that were created in the 2015 session that received $343 million in funding. The 2017 Legislature added an additional $152 million to programs that were created in 2015. The new education initiatives funded by the legislature that the Quality Counts report doesn’t take into account include Zoom schools for English learners; Victory Schools for high poverty, Read by Grade 3, Nevada Ready 21 for technology education, Great Teaching and Leading Fund; Underperforming Turnaround Program, Career and Technical Education, and the College and Career Ready Grant.”

In 2017, when Nevada also ranked dead last, Canavero said, “I don’t dispute the findings, but the investments and reforms that were put forward by Governor Sandoval and passed by the Legislature in 2015 have only begun to take root and are not fully measured by this report. If carried out with fidelity and with a focus on student outcomes we believe Nevada can be the fastest improving state in the nation.”

I seem to recall that back in 2015 they were talking about those Zoom schools for English learners. At the time Nevada ranked 50th in the nation.

In fact, the so-called Zoom Schools for English learners that the governor then planned to spend $100 million on had not succeeded in Clark County, which spent nearly $40 million on 14 Zoom Schools and not one of them improved in the statewide academic five-star ranking. Four actually lost a star.

The Read by Grade 3 program is not yet being enforced. The Las Vegas newspaper reported in October that data compiled by the state Department of Education indicated only 43 percent of the schools that received grants to help struggling students improve their reading actually bettered their test scores in third grade, while the majority showed a decline.

If the law were in place, the paper reported, about 55 percent of third-grade students would be in danger of being held back.

But wait till next season.

R-J pix

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What are the chances Bundy mistrial ruling could be reversed?

Bundy case protesters (Pix via Oregonian)

As we noted two weeks ago, it is rather curious that the judge in the Bunkerville standoff case declared a mistrial because the prosecution failed to timely turn over evidence that she previously had deemed inadmissible.

Today the Las Vegas newspaper picked up on the fact the prosecution made this very argument in “recently unsealed court papers opposing the dismissal,” though the unsealing was two weeks ago. The paper quoted that document as saying, “The government did not withhold material to gain a tactical advantage or harm the defendants. Rather, it litigated these issues in good faith, arguing the materials were neither helpful nor material and provided reasoned explanations for its decisions.”

The prosecution further argued in that unsealed document, which was reported by The Orgeonian two weeks ago:

The government has extensively briefed the issue of evidence relevant to a claim of self-defense and/or third-party state of mind (beliefs). … The gravamen of these motions was seeking the Court’s guidance regarding the limits of what did or did not relate to a cognizable defense or relevant state of mind (beliefs), to preclude the possibility of jury nullification.

Excessive force claims usually arise in the context of arrest/resisting arrest cases
where police force is used. In those case, the courts analyze the force requirement under
the Fourth Amendment — a situation wholly different from the charges in the Indictment.
The Indictment does not charge that any defendant resisted arrest. Under these
circumstances, any use or threat of use of force is analyzed under the Due Process Clause. (“Inasmuch as no juror has a right to engage in nullification—and, on the contrary, it is a violation of a juror’s sworn duty to follow the law as instructed by the court — trial courts have the duty to forestall or prevent such conduct…”) (citation omitted).

The government’s disclosure decisions were informed, in part, by the Court’s ruling
on these issues…. Relevant to the government’s disclosure decisions are the Court’s recent in limine rulings regarding the limits of cognizable defenses. First, the Court explained that its ruling from Trial 1—that Defendants were not entitled to a jury instruction on self-defense or justification—“is applicable to the upcoming trial because Defendants have failed to establish the essential elements necessary for the defense.”

This could be the basis for an appeal the 9th U.S. Circuit Court of Appeals seeking to overturn the mistrial.

The prosecution also argued:

Where both flagrancy and substantial prejudice are shown, a district court may
dismiss an indictment on one of two bases: outrageous government conduct that amounts
to a due process violation, or as an appropriate exercise of the Court’s supervisory powers.
… The standards to dismiss, either for a due process violation or under the district court’s supervisory powers, are high and permit dismissal only in extreme cases.

(“This is a high standard … and even in some of the most egregious situations it has not
been met” (internal citation omitted)).To violate due process, governmental conduct must be “‘so grossly shocking and so outrageous as to violate the universal sense of justice.’”

The morning paper helpfully broke down the case results so far:

Breakdown by the numbers

4 defendants’ cases were dismissed — Cliven Bundy, Ryan Bundy, Ammon Bundy, Ryan Payne

2 acquitted — Steven Stewart, Richard Lovelien

4 awaiting trial — David Bundy, Melvin Bundy, Joseph D. O’Shaughnessy, Jason Woods

7 pleaded guilty — Pete Santilli, Eric Parker, Scott Drexler, Micah McGuire, Gerald Delemus, Blaine Cooper, Brian Cavalier

2 convicted — Gregory Burleson, Todd Engel

Burleson was sentenced to 68 years in prison. The mistrial due to failure to disclose evidence surely will grounds for appeals, too.

 

Editorial: Anti-conversion therapy law tramples free speech rights

With the turning of a page of the calendar to a new year comes a host of new laws on the books in Nevada, among them is a law banning therapists from engaging in something dubbed conversion therapy.

The new law makes it illegal for any psychotherapist in Nevada to provide conversion therapy to anyone under the age of 18. That is defined as “any practice or treatment that seeks to change the sexual orientation or gender identity of a person.”

This therapy is barred “regardless of the willingness of the person or his or her parent or legal guardian to authorize such therapy.” The bill description justifies this usurpation of individual and parental rights by claiming the practice is ineffective and potentially harmful.

What is therapy? It is speech.

The bill specifically prohibits a professional health care provider from talking to an underage patient about whether their gender confusion is real or not, but just as specifically allows support or confirmation for “a person undergoing gender transition …” or provides “acceptance, support and understanding of a person or facilitates a person’s ability to cope, social support and identity exploration and development …”

One may not discourage a patient’s gender feelings but may encourage. Thus only speech that contains the government-approved content is permitted.

The courts have repeatedly ruled that laws that limit speech based solely on its content violates the First Amendment.

In a recent article, Michelle Cretella, president of the American College of Pediatricians, reported that she had a male patient who between the ages of 3 and 5 increasingly played with “girl toys” and said he was a girl. She referred the parents and the boy to a therapist, who discovered that the boy had a younger special needs sister who required a significant amount of attention from her parents. The boy perceived that his parents preferred girls and thus he would become one.

“With family therapy Andy got better,” Cretella wrote.

In Nevada, that therapist now could have his or her license revoked for engaging in conversion therapy.

Presumably under this law, a therapist could be punished for telling a patient that 80 to 95 percent of all children who express feelings of gender dysphoria abandon those feelings upon maturity and that more than 80 percent of youth claiming to experience same-sex attractions in late childhood and adolescence identified themselves as exclusively heterosexual upon becoming adults.

Would telling a minor to wait and let nature take its course violate the law?

In the waning days of the 2017 legislative session the bill that is now law was amended in an attempt to protect religious counselors from being punished under the law, but it is a contortion that adds only confusion.

That amendment stated “there is nothing in this bill that regulates or prohibits licensed health care professionals from engaging in expressive speech or religious counseling with such children if the licensed health care professionals: (1) are acting in their pastoral or religious capacity as members of the clergy or as religious counselors; and (2) do not hold themselves out as operating pursuant to their professional licenses when so acting in their pastoral or religious capacity.”

So, which hat is the professional licensee wearing when talking to a child about gender? The pastor hat or the doctor hat?

Unfortunately, the federal circuit courts have rejected arguments that a similar California law violates both the free exercise of religion and free speech aspects of the First Amendment and the Supreme Court has thus far declined to hear appeals.

Now that the law is on the books in Nevada and livelihoods are in jeopardy, someone should take another stab at challenging the constitutionality of this law in court.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Gov. Sandoval signs anti-conversion therapy law.

Newspaper column: Nevada should challenge constitutionality of federal pot law

A week ago the Trump administration rescinded a series of Obama administration memos instructing federal prosecutors to back off enforcing federal marijuana laws in states that have legalized it, sending legal pot businesses into a dither, including those in Nevada.

Attorney General Jeff Sessions said he would leave it up to federal prosecutors to decide what to do when state law clashes with federal drug law. Justice Department officials said the previous administration’s stance allowed states to flout federal law.

Nevada Attorney General Adam Laxalt sent out an email saying his office is reviewing the change in the Justice Department’s stance on federal pot law enforcement and evaluating the ramifications for the state

“Although I opposed the Question 2 ballot initiative proposing the legalization of recreational marijuana in Nevada, I also pledged to defend the measure were it approved by the voters,” Laxalt stated. “Since Questions 2’s enactment, my office has vigorously defended it against two related lawsuits that threatened to slow or even halt the implementation of the law, and has further assisted with the formulation and adoption of regulations to allow dispensaries to commence sales of recreational marijuana within just six months of the law’s enactment. My office has expeditiously facilitated the implementation of the law in the face of considerable uncertainty about the status of federal enforcement activity.”

We suggest that the state’s attorney do what attorneys do: Sue.

The states aren’t flouting federal law, Congress is flouting the Constitution. If it took a constitutional amendment to allow Congress to make alcohol illegal during Prohibition, the same should be true for marijuana.

The 10th Amendment clearly states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Nowhere does the Constitution grant that power to Congress.

In fact, the divided Supreme Court decision upholding Congress’ power to ban marijuana is an absurdity constructed from a fatuity and makes a mockery of the principles of federalism.

In the case of Gonzales v. Raich, the high court found that Congress had the power under the Commerce Clause to prohibit a person from growing marijuana for her own consumption because it could affect interstate commerce. The court cited as precedent the New Deal-era case of Wickard v. Filburn, which said a farmer who grew wheat for his own consumption affected interstate commerce because, if he had not done so, he would’ve had to purchase wheat, thus affecting the market and price for wheat.

Thus the court essentially erased any distinction between interstate and intrastate commerce or even no commerce at all. Whatever the imagination can conjure.

 In his dissent in the pot case, Justice Clarence Thomas fumed, “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.”

Thomas added, “This makes a mockery of (James) Madison’s assurance (in Federalist Paper No. 45) to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’”

Justice Sandra Day O’Connor also raised the issue of federalism, writing in dissent in Raich, “Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.”

With the court now more originalist in its composition, the arguments of Thomas and O’Connor might hold sway in a constitutional challenge of the federal marijuana law, should Laxalt and the attorneys general of the states that have legalized pot press the matter.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Morning newspaper is a ‘non-profit’ operation, says Greenspun

Brian Greenspun — the putative editor of the Las Vegas Sun, the tiny printed insert in the morning newspaper and the website of the same name — has just confirmed what many have presumed for the past few years.

He has posted online a note telling readers that the Sun is about to start charging for access to online articles after free access to 10 articles. The reason is simple. He is not making money from the joint operating agreement with the Sheldon Adelson-owned print newspaper. Not that he is contributing much of anything to attract print readership.

Here is his explanation about the paucity of funds coming his way from the JOA:

A major source of our newsroom funding has dried up. Years ago, the Las Vegas Sun stopped publishing our print newspaper and stopped selling newspaper advertising in competition with the Las Vegas Review-Journal. In 1990, we combined our print operations (as well as our circulation) with the Review-Journal. The Review-Journal took responsibility for printing, distributing and selling advertising for the Sun and benefited mightily from this arrangement. The quid pro quo was that the Las Vegas Sun would get a small percentage of R-J profits that we could use to help fund the continuing operations of our newsroom. In short, the combination with the Review-Journal provided much of the money necessary to pay for the quality journalism the Las Vegas Sun provides.

For decades this approach benefited the R-J, and every management team there delivered a profit — a little less of a profit each year, but still healthy enough to help us offset the significant costs of our news operations.

Unfortunately, that has changed.

The current management of the Review-Journal plunged the newspaper into a loss immediately after purchasing the newspaper in 2015. To date, the Review-Journal’s management continues to run a money-losing newspaper. We hope they find a way to turn the R-J around in the face of ongoing revenue and circulation decline. (And no, purchasing a print subscription to the Sun and R-J doesn’t benefit the Sun in this current scenario.)

Our initiative with the metered paywall is an effort to replace some of that lost funding for the newsroom.

Perhaps Greenspun continues the contractual JOA just out of spite, because it is surely costing Adelson a lot of money for wasted newsprint for the wasted Sun section, whose only worthwhile content is the cartoon Dilbert.

Donald W. Reynolds, the former owner of the morning Vegas paper, is reputed have declared that the only measure of the success of a newspaper is its profitability.

Save money by selling off federal public grazing range

Here is an idea from 1982 whose time has come.

Writing at Forbes magazine online today, Steve Hanke, a one-time senior economist on President Reagan’s Council of Economic Advisers, resurrects an idea he broached 36 years ago — sell off federal grazing lands with the first right of refusal going to current grazing permit holders.

Hanke says Reagan endorsed the idea, as did then-U.S. Sen. and Reagan confidant Paul Laxalt. He quotes Laxalt as saying:

Before we proceed any further, let me tell you where I stand. I believe a need does exist to sell some of our excess public lands. However, I intend to do all in my power to protect existing public land users from being “locked out.” To this end, I endorse a proposal developed by Dr. Steve Hanke, a senior economist on the President’s Council of Economic Advisors, that deals with the protection of existing grazing rights which, I believe, can serve as a model for protecting miners as well. Basically, Dr. Hanke has proposed that ranchers currently holding grazing permits be given the right to purchase, on a first refusal basis, the public grazing permits that they currently rent from the BLM.

Hanke says the federal government should stop renting grazing land — a process by which the government loses 91 cents an acre — and sell it at a profit.

Hanke concludes:

The question now is: what would be the benefits associated with this privatization proposal?

First, the productivity of federal grazing lands would increase.

Second, federal revenues would be generated. Instead of receiving annual grazing fees, the federal government would receive an equivalent lump-sum payment.

Third, the annual federal costs (and these do not include, as they should, capital carrying charges) exceed the annual revenues generated from federal grazing lands. Therefore, privatization would eliminate negative cash flows for the federal government. This would obviously benefit all U.S. taxpayers, who must now pay taxes to support the federal government’s retention of public grazing lands.

Lastly, a state and local property tax base would be created. Western dependence on Washington, D.C. would be reduced and federalism would be enhanced.

Sounds like a winning proposition, especially for taxpayers.

BLM pix

 

Why the Bundy charges were dismissed and what next?

Cliven Bundy

Columnist Bob Barr took a gander at the reasons behind the judge’s dismissal of charges against Cliven Bundy, two of his sons and a Montana militiaman in the Bunkerville standoff and described the government’s behavior thusly:

What appears to have been at the heart of the Justice Department’s unconscionable behavior was sheer hubris; the arrogance that comes from a superior sense of status and power, built on decades of legislative and judicial decisions concluding that the federal government can do whatever it wants, whenever it wants, to whoever it wants and that its actions are not to be questioned.

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