Newspaper column: Nevada needs a law allowing police to cooperate with ICE

A ruling by a federal judge in California has put law enforcement agencies in Nevada and much of the nation in legal jeopardy if they hold prisoners, who are in the country illegally, for the U.S. Immigration and Customs Enforcement (ICE) for potential deportation.

The ruling by Central California U.S. District Court Judge Andre Birrote Jr. in September held that it is a violation of the Fourth Amendment prohibition against unwarranted search and seizure to hold a prisoner until an ICE agent is available to take that prisoner into custody — unless the detention is expressly authorized by state law.

Judge Birrote wrote, “A fundamental tenet of federalism requires states to determine the powers and responsibilities of their own officers and any attempt to subvert states’ control over their law enforcement runs afoul of the Tenth Amendment. … Thus, even where federal law permits state or local officers to make civil immigration arrests, the authority for such arrests must come from state law.”

Though Arizona and a few other states have such laws, Nevada does not.

As a result, a couple of weeks ago the head of the Las Vegas Metropolitan Police Department, which covers the jurisdictions of Las Vegas and unincorporated Clark County, announced his agency was suspending its formal agreement with ICE — called a 287(g) program — to detain prisoners for pickup by the federal agency. The sheriffs in Nye and Lyon counties also have 287(g) agreements but they have not said what their plans are yet. Other jurisdictions may not have formal agreements but may still cooperate with ICE.

In announcing the change in policy, Metro Sheriff Joe Lombardo said his agency will “continue to work with ICE at the Clark County Detention Center in removing persons without legal status who have committed violent crimes,” according to The Nevada Independent.

ICE’s deputy field office director in Las Vegas, Dana L. Fishburn, issued a statement saying, “Clark County’s decision to suspend its 287(g) program will only benefit criminals. Recent California legislation regarding detainers is irrelevant, and is an excuse to justify a decision that will impact the safety of our communities here in Nevada.”

The potential threat to local enforcement agencies who cooperate with ICE was spelled out in a press release from the American Civil Liberties Union of Southern California at the time of the ruling. It quoted Ruben Loyo, senior litigation attorney at the National Immigrant Justice Center as saying, “For over a decade now ICE has been systematically violating the Fourth Amendment rights of hundreds of thousands of individuals each year through its detainers. This ruling should be yet another reminder to law enforcement that if you comply with detainers you too will be held liable.”

ICE Acting Director Matt Albence warned that the ruling will endanger the public and called it “judicial overreach.” According to Fox News, in the past year ICE deported more than 145,000 illegal immigrants, of those approximately 70 percent occurred through detainer requests made to state and local jails and prisons.

“This conclusion is out of step with the realities of modern law enforcement, endangers the public and construes probable cause in an unfairly restrictive way,” Albence said. “Moreover, this decision, issued by a single judge in Los Angeles will impact at least 43 states, threatening communities far beyond the one in which this judge sits.”

Meanwhile, in Arizona it is business as usual. State law allows county sheriffs “the authority to develop their own protocol consistent with the law,” Ryan Anderson, a spokesman with the Arizona attorney general’s office, told Cronkite News, adding that the law bars detention of people for “longer than necessary” on suspicion of being here illegally. This gives local law enforcement discretion, but one Arizona sheriff said he would hold those in the country illegally for immigration agents only if they are picked up immediately.

Lest some Nevada sheriff or police chief gets dragged into court for holding a potentially dangerous illegal immigrant an extra 20 minutes while waiting for an ICE agent, Gov. Steve Sisolak should call the Legislature into special session to quickly pass a law similar to the one in Arizona.

While we’ll not hold our breaths waiting for the Democratic governor or the Democratic majorities of both chambers of the Legislature to act on behalf of public safety over the convenience of illegal immigrants, it would be the right thing to do.

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.

Metro Sheriff Joe Lombardo (AP file pix)

Editorial: Don’t allow police to scan cellphones after wrecks

Textalyzer allows police to scan cellphone (NBC pix)

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

     — Fourth Amendment

 The urge to dictate how other people behave or misbehave apparently is irresistible.

There are already laws on the books prohibiting drivers from using cellphones while driving unless a hands-free system is employed. Now the Nevada Legislature is considering a bill, Assembly Bill 200, that would allow police at the scene of an accident to use an electronic device to determine whether a driver was, in fact, using such a device at the time of an accident. The bill would allow the suspension of one’s driver’s license for refusing to comply.

A company called Cellebrite says it has created something it calls a Textalyzer — like a breathalyzer, get it? — that will detect whether a phone was in use. The company says the device would only determine a user’s activity and what type of activity, such as hands-free or not, and would not reveal phone numbers or text messages.

Distracted driving is, well, distracted driving. The hair splitting over the type of distracted driving is irrelevant. One could be changing the radio, eating a sandwich, combing one’s hair or yelling at the screaming brat in the back seat.

The result is all the same, as well as the responsibility as shown by the evidence at the scene of the accident.

AB200, despite all the reassurances to the contrary, is unnecessary and poses too great a threat to the right to be secure in one’s person and personal effects without a properly issued search warrant.

“We can’t give the government the power to peer into everybody’s digital lives indiscriminately, because that might create a bigger problem than the one we’re trying to solve in the first place,” NBC News recently quoted Neil Richards, a law professor at Washington University in St. Louis who’s an expert in privacy and civil liberties, as saying about the use of such devices by police. “The way to do it is if the police suspect a case of distracting driving, they go and they get a warrant and they compel the records from the service provider.”

Who is to say what an officer might extract once the phone is handed over.

The Nevada American Civil Liberties Union has expressed opposition to AB200. “The ACLU of Nevada strongly opposes AB200 which would allow law enforcement to utilize experimental technology that would infringe on the Fourth Amendment and privacy rights of Nevadans without obtaining a warrant,” The Nevada Independent has quoted ACLU of Nevada Policy Director Holly Welborn as saying.

With all the guns, non-lethal arms, body cameras and other devices police are forced to lug around, there is no need to add an expensive and as-yet unproven cellphone scanning device.

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.

Editorial: Bill would strengthen public records law

It is time to put some teeth into Nevada’s public records law.

Even though state law requires that all public records and books, except those specifically exempted as confidential by law, must be open for inspection and copying, government agencies have been flouting the law for years, refusing to turn over anything that might prove embarrassing to the agency or its bosses. Police refuse to release records. School districts and cities conduct investigations of misconduct and refuse to release the results. One coroner refuses to release autopsies, even to a spouse. The public employee pension system refuses to release the names and pensions of pensioners.

And when someone challenges the intransigence in court, the agencies hire lawyers and spend tax dollars to fight letting the taxpayers know what they are doing with our money. When they lose, they shrug it off and do it all over again, because there are no consequences for the agency or the decision makers.

Now comes Senate Bill 287, which would put some skin in the game for the agencies and the people who wrongly deny public records requests.

Should SB287 become law, if a court determines a governmental entity or the person making the decision on behalf of the governmental entity wrongly denies a records request, the requester may be awarded a civil penalty of not less than $1,000 or more than $250,000 per offense from the agency or the responsible party or both.

That part about making the responsible party pay up should grease a few skids.

Perhaps it also should specify that the agency may not reimburse the responsible party for the civil penalty.

A newly formed group called Right to Know Nevada sent out a press release via email recently supporting SB287.

Maggie McLetchie, an attorney who has represented the Las Vegas newspaper in a number of records lawsuits, was quoted as saying, “By ensuring that existing law is actually followed, Senator (David) Parks’ bill would reduce the need for expensive public records litigation, which is a good thing. The goal is to eliminate the need for costly lawsuits and to simply have the government be fully transparent and accountable to the people it serves, which is what state law already requires.”

ACLU of Nevada Executive Director Tod Story said, “While existing law already requires a response within 5 business days, we have experienced vastly different response times, not too mention fees, from governments across the state in response to the identical request. In fact, some agencies simply never responded to our request at all.”

The bill would also limit what an agency could charge for a public record to what it actually costs to produce it, excluding labor cost.

Passage of SB287 might actually put some meaning into the original law’s intended purpose: “The purpose of this chapter is to foster democratic principles by providing members of the public with access to inspect and copy public books and records to the extent permitted by law; The provisions of this chapter must be construed liberally to carry out this important purpose; Any exemption, exception or balancing of interests which limits or restricts access to public books and records by members of the public must be construed narrowly.”

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.

Editorial: Sanctuary city suit makes political, not legal case

The American Civil Liberties Union of Nevada filed a lawsuit this past week in Carson City attempting to block the voters from having a say on an initiative petition that would amend the state Constitution to prohibit sanctuary cities in Nevada.

ACLU of Nevada Executive Director Tod Story was quoted in a press release as saying, “This pointless, poorly crafted petition would only serve to alienate Nevada’s immigrant communities from local police officers and vital government services, making our communities more vulnerable to crime and overall worse off.”

Frankly, that is a political argument as to whether the voters should reject the amendment, not a legal argument for preventing the voters from voicing their opinions.

The petition filed with the Nevada Secretary of State in October is being advanced by the Prevent Sanctuary Cities Political Action Committee, which is headed up by Republican state Senate leader Michael Roberson.

The description of effect of the initiative reads, “If enacted, this measure will add a new section to the Nevada Constitution that will prohibit the legislature, a county or city from enacting a law or ordinance, or otherwise adopting, enforcing or endorsing a policy which prohibits or discourages cooperation with the enforcement of the immigration laws of the United States. To become effective this measure must be approved by a majority voters in two general elections.”

The press was not able to obtain a reaction from Roberson about the ACLU suit.

To put the measure on the 2018 ballot backers must obtain 112,544 signatures by June. It would need to be approved by a majority in 2018 and 2020 to become law.

The ACLU press release also quoted suit plaintiff Xiomara Rodriguez of the nonprofit Tu Casa Latina, “We know that this policy will endanger immigrant communities. We’ve already seen victims of workplace harassment or domestic violence refuse to call the police because they’re afraid of being torn away from their families. If local police become immigration agents, there’s a very real possibility these communities will face more abuse.”

Former Washoe County Sheriff Michael Haley, also a plaintiff in the suit, was quoted as saying, “We know that compelling local law enforcement to enforce federal immigration law is actually harmful to public safety. Police are less likely to receive valuable information or tips from communities that are terrified of facing possible deportation. It has the potential to increase crime and harm the entire community. Fundamentally this initiative undermines our ability to keep our communities safe.”

Again, political arguments not legal ones. Any other laws the police should ignore in order to endear themselves with certain communities?

During this past legislative session, Democrats tried to push legislation limiting the role of law enforcement in cooperating with immigration enforcement agencies. Roberson fought the efforts and the bill died.

The only legal argument the ACLU makes is that the petition is deceptive or misleading because it fails to provide any information about the effects of enactment. Perhaps that is because any such effort to do so would be wildly speculative and subject to being challenged by the likes of the ACLU no matter what was said.

The courts should shunt this attempt to prevent the voters from deciding this matter. Let the voters decide, one way or the other.

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.

Uneducated ‘students’ drown out speech on free speech on campus

Students protest a presentation by the American Civil Liberties Association. (Pix by The Flat Hat)

Once again uneducated hooligans used the heckler’s veto to shut down a speech on a college campus. This time, appropriately enough, it was a speech a couple of weeks ago by an ACLU executive about free speech.

Students supposedly linked to the so-called Black Lives Matter movement at the College of William & Mary in Virginia chanted, shouted and held up signs for an hour preventing anyone for hearing the speech by Claire Guthrie Gastañaga, executive director of the ACLU’s Virginia chapter.

The students chanted idiotic slogans such as: “ACLU, free speech for who?” “The oppressed are not impressed,” “ACLU, you protect Hitler, too,” “Blood on your hands,” “Shame! Shame! Shame!” and “Your free speech hides beneath white sheets.”

When students later tried to approach the ACLU speaker after it was clear the speech would not be allowed, the protesters yelled louder and prevented even that conversation.

According to Inside Higher Ed, the college out a statement saying, “We do not want any event to be ended early or shut down because someone disagrees with the views of the speaker or is attempting to prevent speech and questions by those attending. We must be a campus that welcomes difficult conversations, honest debate and civil dialogue. We are reviewing our planning and protocols and taking measures to prevent this from happening again” But the college, citing privacy laws, refused to be specific about what, if any, punishment might to handed down.


Among the more hare-brained comments from an alleged leader of the speech protesters was this: “The ACLU and liberals believe that legality determines morality. Not too long ago, the Constitution dictated that black people only counted as three-fifths of a person. The Constitution cannot be your moral compass. In contrast to the ACLU, we want to reaffirm our position of zero tolerance for white supremacy no matter what form it decides to masquerade in.”

In other words, they will not tolerate intolerance, apparently not having a clue that such tactics cut both ways and can be used against them, too. They apparently totally misunderstand the significance of the concept of free speech as a tool to win an argument instead of a war. Dismissing the precepts of the Constitution simply because its drafters had to compromise on slavery is tantamount to refusing to hear or heed anyone but the pure of heart.

The free speech the students are denying is what has allowed the mindset of the country to evolve over the years. They are fighting for civil rights that were won half a century ago. The instances of abuse are now rare, but the children have taken up a self-defeating argument under false assumptions about a handful of incidents. By gawd, they have seen injustice and it is theirs — to make their petty lives meaningful.

A little education about wise words from more than century prior to the Constitution might be in order:

And though all the windes of doctrin were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licencing and prohibiting to misdoubt her strength. Let her and Falshood grapple; who ever knew Truth put to the wors, in a free and open encounter. Her confuting is the best and surest suppressing. … When a man hath bin labouring the hardest labour in the deep mines of knowledge, hath furnisht out his findings in all their equipage, drawn forth his reasons as it were a battell raung’d, scatter’d and defeated all objections in his way, calls out his adversary into the plain, offers him the advantage of wind and sun, if he please; only that he may try the matter by dint of argument, for his opponents then to sculk, to lay ambushments, to keep a narrow bridge of licencing where the challenger should passe, though it be valour anough in souldiership, is but weaknes and cowardice in the wars of Truth. For who knows not that Truth is strong next to the Almighty; she needs no policies, nor stratagems, nor licencings to make her victorious … — John Milton, Areopagitica, 1644, a speech for the Liberty of unlicenc’d Printing

Nor vulgar protesters claiming to already grasp the truth.




Editorial: High court should follow judge’s rationale for upholding ESA program

Mothers rally in favor of Nevada law creating education savings accounts. (Shannon Churchwell photo)

The Nevada Supreme Court could save itself a lot of time and effort by just cutting and pasting a Clark County judge’s 45-page ruling this past week on the constitutionality of the state’s education savings account (ESA) law.

Though Court Judge Eric Johnson’s decision dismissed an American Civil Liberties Union suit that claimed the law violates the state Constitution’s prohibition against funding sectarian institutions because parents could spend the savings at religious-based private schools, he also addressed the crux of another case that is pending before the Supreme Court.

In that case — Schwartz v. Lopez — plaintiffs argue that money set aside for public schools funding may not be used for any other purpose.

The Legislature in 2015 set statewide public education funding at $5,710 per pupil in the Distributive School Account (DSA). The ESA bill dictated that most parents who pull their children from public school would be given 90 percent of that amount to fund education by whatever means they choose — private school, tutoring, homeschooling — thus reducing the public school enrollment and the needed funding.

Judge Johnson, writing on the religious separation argument, said, “The United States Supreme Court’s ‘decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools, and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.’ … Where a school aid program, such as the ESA program, is neutral with respect to religion, and provides assistance available directly to a wide spectrum of citizens, or as in this case, essentially all parents of Nevada school children, who, in turn, direct the financial assistance to religion affiliated schools ‘wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge …’”

The judge also addressed and dismissed many of the financing issues raised in the Schwartz v. Lopez case pending before the Supreme Court, writing that “even if large numbers of parents enroll in the program, so long as there is a ‘uniform public school system,’ open to the ‘general attendance’ of all, the Legislature has fulfilled the duty imposed …”

According to Attorney General Adam Laxalt, whose office represents the state in seeking to have the ESA law upheld, 6,000 students have applied under the ESA program, which is on hold pending the outcome of legal challenges.

“This is a huge and important step in getting certainty for the thousands of families waiting to participate in Nevada’s ESA program,” said Laxalt of Johnson’s ruling. “The Court correctly dismissed these speculative and tenuous claims. The decision today clears the way for the Nevada Supreme Court to meaningfully address the remaining uncertainty caused by the injunction in the other case challenging Nevada’s ESA program. We are one giant step closer to helping thousands of Nevada families choose the best educational option for their children.”

The ACLU is considering whether to appeal, according to the Las Vegas newspaper.

The judge’s ruling repeatedly emphasized that the state Constitution instructs lawmakers to encourage education by “all suitable means,” which is in addition to the requirement to “provide for a uniform system of common schools.”

Johnson also noted that the plaintiffs alleged that certain schools might illegally discriminate in admissions and hiring. If that is the case, he stated litigation could be brought when that happens. “Whether illegal discrimination occurs and a school may participate under the program can be dealt with in the specific context of the facts of an actual controversy rather than in the hypothetical,” he wrote twice in the ruling.

Gov. Brian Sandoval released a statement saying, “Today’s decision by Judge Johnson is a victory for thousands of Nevada families who are pursuing the opportunity to choose the best education path for their children. School choice was an important part of the legislative education reform package enacted in 2015. I hope that all pending litigation challenging these critical reforms will soon be resolved for the sake of our students who deserve every opportunity to succeed.”

Laxalt has informed the Supreme Court that the first quarterly ESA payment for the coming school year is scheduled for Aug. 1, but in order for the Treasurer to do all the necessary paperwork, he needs a favorable court ruling lifting the Schwartz v. Lopez injunction by July 8.

The Supreme Court needs to rule on these lawsuits as soon as possible so thousands of parents and children can be released from limbo and get on with their education.

A version of this editorial appears this past 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.

Update: On Wednesday the Supreme Court issued an order denying the request for a expedited hearing and set the hearing date for July 8, meaning that ESA checks probably will not the ready for the fall semester. “On May 20, 2016, appellant filed an unopposed motion to expedite and set oral argument for June 6 or 7, 2016, and to render a decision by July 8, 2016. We deny the motion, however, we have scheduled oral argument for July 8, 2016, the earliest possible date this court can reasonably hear the merits of this case, and we will expedite a decision in this matter to the extent this court’s docket permits,” the order states.

Editorial: Courts must expedite approval of school choice law

With the school year already under way and the Nevada treasurer’s office working apace to implement the state’s new education savings account law early in 2016, it is vital that the courts make short work of the American Civil Liberties Union lawsuit seeking to block the new law.

With that pressing timetable in mind, Attorney General Adam Laxalt has filed two motions in the district court in Clark County — one to expedite the hearing of the case and one to dismiss the suit out of hand.

Under Senate Bill 302, families that withdraw their children from public schools may establish savings accounts equal to 90 percent of the state funding for each pupil — about $5,100 a year currently. The law takes effect Jan. 1, but state Treasurer Dan Schwartz is working to have ESA accounts available as early as February.

The accounts would be like debit cards, with expenditures allowed only for private school tuition, homeschooling, tutoring and other education-related services.

“My office has assembled a capable and experienced team of lawyers to defend Nevada’s ESAs, and will work to ensure that parents enjoy the genuine educational choice envisioned by lawmakers this past legislative session,” Laxalt said in a statement after filing the motions.

The ACLU suit claims the ESAs are unconstitutional because Nevada has a Blaine Amendment barring the use of public funds for any sectarian purpose.

The lawsuit argues, “The Program establishes a system whereby, instead of enrolling their children in public schools, parents may obtain and use public money to pay for enrollment in private religious institutions. This is exactly what the Nevada Constitution forbids.”

The suit repeatedly calls SB302 a voucher program.

Laxalt seek dismissal of ACLU suit over education savings accounts.

Laxalt’s motion to expedite explains the urgency: “Nevada parents have a crucial interest in the urgent resolution of this case. This litigation’s outcome will determine the decisions of hundreds of thousands of them obligated to make the best educational choices for their children. Nevada has approximately half a million school-age residents, more than 450,000 of whom are enrolled in public schools. The state Treasurer has already had more than 3,500 students apply for ESAs. Right now, parents are making educational decisions for their children based on the reasonable expectation that ESAs will be available in early 2016.”

Since the law limits eligibility of ESAs to children enrolled in public school for at least 100 days, the suit notes, “Families withdrawing children from public school — or planning to withdraw them — in reliance on SB 302 could be irreparably injured, financially and educationally, by prolonged litigation over SB 302.”

Laxalt’s motion to dismiss the suit declares, “The ESA program is not a ‘voucher’ program. In a voucher program the State issues ‘vouchers’ that authorize the disbursement of State funds directly to a private school. … Under Nevada’s ESA program, by contrast, the State disburses funds into students’ education savings accounts, from which parents choose where and how those funds will be spent (within the variety of educational purposes allowed by SB302). Any funds spent through the ESA program are paid by the State to a private vendor, who in turn disburses those funds to the recipient chosen by parents.”

The motion argues that the ESA funds are no different than a state worker using his or her state paycheck to pay for tuition at a private church-based school or for medical services at a religiously affiliated private hospital.

The attorney general also cites a U.S. Supreme Court case in which it was held that in such cases the “intervening decisions of parents break the connection between government funds and the schools that any individual student ultimately attends.”

The most current and most analogous court decision is from Arizona. “The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion. Any aid to religious schools would be a result of the genuine and independent private choices of the parents,” the Arizona Appeals Court said. “The parents are given numerous ways in which they can educate their children suited to the needs of each child with no preference given to religious or nonreligious schools or programs.”

It is open and shut and must be shut soonest for the sake of the children.

(Getty Images)

A version of this editorial appears this past week in 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.

Newspaper column: Real world confronts good intention of protecting ‘transgender’ students


In olden days, a glimpse of stocking
Was looked on as something shocking.
But now, God knows,
Anything goes.
Good authors too who once knew better words
Now only use four-letter words
Writing prose.
Anything goes. 
     — Cole Porter, 1934

Liberals used to preach that the welfare of society must take precedent over the desires, inclinations and even rights of any given individual.

But now, if someone wants to drive on the left side of the road, who are we to disdain? Accommodate.

If a tone-deaf kazoo player wishes to join the philharmonic on stage, why should we hesitate? Accommodate.

Anything goes.

Earlier this fall, the Elko County School Board refused to allow a 13-year-old girl who “identifies” as a boy to use the boys’ restrooms in her middle school, but continued to allow her to use a unisex restroom, according to an Elko Daily Free Press account.

The meeting at which the decision was made was packed with parents who heard the mother of the child in question argue, “My son has the right to live his life as a boy.”

The mother said her child is bullied every day, and — contorting reason beyond recognition — seemed to attribute this to her daughter not being allowed to use the boys’ restroom.

The board refused the mother’s request, despite the fact the state Legislature this past spring passed Senate Bill 504, an anti-bullying law which prohibits “blocking access” to “any property or facility of a school” on the basis of sex, gender identity or expression or any other distinguishing characteristic.

I warned in this column at the time the law was bound to create problems and controversy.

“One of the law’s unintended consequences, at least we hope it was unintended, appears to be a prohibition of gender segregation — as in restrooms, locker rooms and showers,” I wrote, noting specifically that the law prohibits “blocking access” to school due to gender identity.

Assemblyman John Ellison, who voted against SB504, told the Elko board that standards should be set to support all students. “We should consider the privacy of all 9,526 students, not just the four transgender ones,” he was quoted as saying.

Assemblyman Jim Wheeler, who voted in favor of the bill, told the board, “Had I known the provisions for (the bill), I would never have voted for it.”

Within a week of the Elko board’s vote, it was notified by the American Civil Liberties Union of Nevada that it was looking into the board’s action concerning the “transgender” child and might take legal action against the district over its bathroom discrimination.

The ACLU letter specifically cited SB504 and argued that denying a transgender student access to a bathroom of choice could “create an intimidating or hostile educational environment for the pupil.” It also said forcing “a humiliating ‘accommodation’ of a third restroom” is “detrimental” to the youth.

Accommodation for one, but not for the rest of the students?


Now there’s a word we don’t hear too often, but that is the word invoked by Karen England, executive director of Capitol Resource Family Alliance, which unsuccessfully advocated a bill to ban transgender students from gender segregated facilities and also opposed SB504.

“Simply put, modesty is not hate,” she wrote recently on this topic in an email. “We can and should have compassion for those that are uncomfortable in traditional sex separated bathrooms. But our compassion for them should not be abused. They must also show compassion for those that would be uncomfortable if bathrooms and locker rooms were no longer sex separated. And we should all condemn the tired tactic of accusing our ideological opponents of hate.”

Though SB504 does not impose criminal sanctions, it could lead to students being expelled and teachers and administrators being fired if they “tolerate” any kind of bullying.

Frankly, anyone with a modicum of common sense, practical experience and logic should realize that giving free access to gender segregated restrooms, locker rooms and showers to anyone at the slightest whim or expression of gender confusion is not an anti-bullying measure at all, but an invitation to serious trouble, even violence, and an invasion of privacy that will create a chaos in which learning will be all but impossible.

Lawmakers created the opposite of what they intended.

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

Update: The ACLU has followed up with another demand letter spelling out its legal argument.


Editorial: Premise of lawsuit challenging education savings account law is flawed

This past week a second lawsuit was filed in state court challenging the constitutionality of a state law creating education savings accounts that would allow parents to use a portion of the state funding that would otherwise be used in public schools to be spent on private school tuition or homeschooling.

An earlier lawsuit filed by the ACLU challenges the law because the savings accounts could be used for sectarian schools and the state constitution prohibits using tax money for any religious purpose. The issue there is whether money once in the hands of parents is still tax money.

The latest suit, Lopez v. Schwartz, filed in the 1st Judicial District Court in Carson City by a group called Educate Nevada Now, claims the law reduces state funding for public schools to below the level determined to be sufficient. The suit repeatedly refers to the law, Senate Bill 302, as a voucher law, though the law never uses that word and mentions only savings accounts.

Sylvia Lazos

Sylvia Lazos, policy director for Educate Nevada Now, said in a press release, “This lawsuit does not challenge the right of parents to choose a private or religious school for their child. But it does seek to ensure that public school funding is not diverted and depleted by subsidizing that choice.”

The lawsuit argues, “The voucher statute further violates the Legislature’s constitutional obligation to establish and maintain a ‘uniform system of public schools. … The drafters of the Nevada Constitution understood the importance of establishing a ‘uniform system’ of ‘common’ or public schools sufficiently funded to prepare all Nevada children to become engaged, productive and contributing citizens; schools that all Nevadan children can attend regardless of beliefs, wealth or ability.”

Actually, the drafters of the state constitution were fairly lax about this “uniform system of public schools” wording, writing specifically, “The legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year …”

The lawsuit also huffs that the constitution “mandates that the Legislature maintain and support those schools by appropriating the funding it deems sufficient for their operation.”

Well, apparently the Legislature, since it passed SB302, deemed it sufficient for public schools to be funded with only 10 percent of the funding formula for students it does not have to teach.

The state currently distributes about $5,700 per public school pupil. The law allows the state Treasurer to set up savings accounts for parents who choose to take their children out of public schools. For most the annual account would be equal to 90 percent of the public school per-pupil state funding allotment or a little more than $5,000. Parents earning less than 185 percent of the federal poverty level would get 100 percent of state funding.

Unstated in all the falderal about sufficient funding is the fact public schools are not solely funded by the state. They also receive local and federal funding.

According to National Education Association figures published in May, Nevada schools spend nearly $9,000 per pupil. So, for every pupil who takes the $5,000 savings account, there is about $4,000 per pupil in funding for public education those who remain – in less crowded classrooms.

After the second suit was filed, Gov. Brian Sandoval released a statement saying, “My office was notified by Educate Nevada Now that its representatives would file an additional lawsuit against Nevada’s sweeping school choice effort. My position has not changed. I strongly support school choice and I firmly believe that an expedited hearing and, if necessary, a final ruling by the Nevada Supreme Court is in the best interest of all parties.”

Sandoval said he hopes the two cases will be consolidated and expedited to remove any uncertainty for parents and educators.

The law takes effect Jan. 1 and first savings accounts could be established in the spring if the courts can make short work of these suits, and we call on them to do so.

The courts have a history of expediting child custody cases, and these could be equated to that level of significance and timeliness.

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

Newspaper column: Education savings account lawsuit must be expedited


Whatever the eventual outcome of the ACLU’s lawsuit trying to block the implementation of a state law creating education savings accounts (ESAs) as unconstitutional, it should be resolved quickly in order to minimize the turmoil, uncertainty and expense for thousands of Nevada parents and their children’s Gov. Brian Sandoval urged Nevada Attorney General Adam Laxalt to use all resources available to expedite a resolution of the case, titled Duncan v. State of Nevada.

“More than two thousand Nevada families have applied for an Education Savings Account in order to take control of their child’s future in education. It is clear that parents want the freedom to choose the best school to meet the needs of their students,” Sandoval said in a statement. “The uncertainty and legal gridlock created by this lawsuit will significantly impact student success. This will only hinder our efforts to equip every Nevada student with the tools they need to pursue the opportunities available in the new Nevada economy.”

That 2,000 is just the number of applications so far. Who knows how many are waiting to see how the program works in practice. Also, many parents who are homeschooling or have their children in private school will be lobbying to have the law modified so they will not have to interrupt their children’s education by putting them in public school for 100 says in order to qualify for education savings accounts that amount to more than $5,000 a year, 90 percent of what the state funds per pupil.

“I believe it is in the best interest of the state and our education system to avoid these costly legal battles by seeking an expedited hearing on this matter and, if necessary, a final ruling by the Nevada Supreme Court,” the governor said. “This will allow students, parents, educators, and the state to move forward and properly direct our focus toward collectively creating a system that provides children with the resources and learning environment they need to thrive and succeed.”

Since the suit questions the constitutionality of the law under the state constitution, the final authority for settling that is the Nevada Supreme Court. Therefore, the quicker it can land there, the quicker parents and children can get on with their educations.

The Nevada Constitution says: “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.” This is called a Blaine Amendment. More than 30 states adopted such amendments a century ago to stop public funding for Catholic schooling.

The ACLU lawsuit argues: “The Program establishes a system whereby, instead of enrolling their children in public schools, parents may obtain and use public money to pay for enrollment in private religious institutions. This is exactly what the Nevada Constitution forbids.”

Once the money is in the hands of the parents, is it public money?

In response to the governor’s call for expediting the case, Attorney General Laxalt issued a statement saying, “Nevada’s Education Savings Accounts were designed to give Nevada’s parents real choices to meet their children’s educational needs. The ACLU’s attempt to derail the prompt implementation of this pioneering program and create uncertainty for many Nevada students, parents and educators is truly unfortunate. My priority is to ensure that my office provides the most comprehensive, considered and successful defense possible of this crucial law.”

He said his office already has assembled a top-notch litigation team to research and weigh all available options. “As a parent of a near school-aged girl, I empathize with the thousands of Nevada parents who want clarity on whether they will be allowed, as the Legislature intended, to have genuine school choice. I will aim, consistent with court procedure and the case’s complexity, to see that they get both as soon as practically possible: their answer and their choice,” Laxalt said.

The attorney general also noted that many news stories cited the fact that the Colorado courts recently struck down education savings accounts in that state as a violation of its Blaine Amendment.

“Few bother to mention that Arizona also has a Blaine Amendment in its constitution, but the Arizona Court of Appeals upheld Arizona’s ESAs two years ago,” Laxalt points out. “That court found that ESAs were neutral toward religion by leaving spending decisions to parents, not the state.”

The Arizona court found, “The parents are given numerous ways in which they can educate their children suited to the needs of each child with no preference given to religious or nonreligious schools or programs. … The ESA is a system of private choice that does not have the effect of advancing religion.”

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