Newspaper column: Education savings accounts not yet saved

Though the Nevada Supreme Court this past week jettisoned most of the arguments that somehow the state’s education savings account (ESA) law is unconstitutional, it still barred enforcement of the law, saying lawmakers failed to properly appropriate money for the ESAs.

It is now up to lawmakers to fix that flaw.

The justices found that Senate Bill 515, which sets aside per pupil funding in the Distributive School Account (DSA), did not even mention ESAs and Senate Bill 302, setting up ESAs, did not “appropriate” funds, even though both bills amend the education financing section of state law (NRS 387) and SB302 added to the already lengthy list of DSA deductions “all the funds deposited in education savings accounts.”

A niggling technicality.

Until the court derailed it, SB302 outlined a program under which the state treasurer was directed to establish an education savings account for any eligible child enrolled in a public school for the previous 100 consecutive days — when the clock now starts is anyone’s guess — and for most the account would be equal to 90 percent of the statewide average per pupil funding, or currently $5,139. There is no limit on the number of accounts.

In a ludicrous aside in the opinion, the court noted the education statute has a hold-harmless clause to protect against wild gyrations in enrollment and suggested that “if all the students left the public school system, the State must fund both the school district’s per pupil amount based on 95 percent of the prior year’s enrollment and the education savings accounts for all students, an amount potentially double the $2 billion appropriated in SB515 for just the public schools. Given that scenario, surely the Legislature would have specified a number of education savings accounts or set a maximum sum of money …”

What would a district with no students spend the money on?

At least a couple of major constitutional hurdles for ESAs have been cleared.

The court dismissed the contention that SB302 violates the state Constitution’s prohibition against using public funds for sectarian purposes. “We disagree. Once the public funds are deposited into an education savings account, the funds are no longer ‘public funds’ but are instead private funds of the individual parent who established the account,” the court opined. “The parent decides where to spend the money for the child’s education and may choose from a variety of participating entities, including religious and non-religious schools.”

The court also dismissed the notion that the state may only expend funds for public schools, noting repeatedly that the state Constitution instructs the Legislature to support education “by all suitable means” and noted that the drafters of the founding document “rejected the notion of making public school attendance compulsory, and acknowledged the need to vest the Legislature with discretion over education in the future.”

So, ESAs are now on the fast track to legislative approval at some future date before the 8,000 children who have applied for them have children of their own, right?

Attorney General Adam Laxalt, whose office defended the law in court, said, “The Court ruled against the State on a small funding issue that was not even debated or contentious when this bill was passed. Fortunately, the Supreme Court has made crystal clear that ESAs are constitutional and that the Legislature can fix this funding technicality and allow for the implementation of ESAs statewide.”

Gov. Brian Sandoval put out a statement after the high court ruling indicating he does not plan to call lawmakers into a special session and will leave the fixing of the appropriation up to the 2017 legislative session, which opens in February.

“Although the court found the current funding mechanism for Education Savings Accounts unconstitutional, there may be a path for a legislative solution,” Sandoval said in that statement. “However, such a solution is complex and must be well thought-out to meet constitutional muster. … I also believe it is important to consult with legislative leadership on this issue as we approach the 2017 legislative session.”

The fly in that ointment is that there is an election in November and it is entirely possible Democrats, with the backing of their teacher unions, just might gain a majority in either the state Senate or Assembly — in which case, ESAs are dead for the foreseeable future, because not a single Democrat voted for ESAs in 2015.

On Wednesday, Sandoval called a special session for Monday but did not put ESAs on the agenda.

 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.

Editorial: How are public school parents harmed when others exit public schools? (Updated)

District Judge James Wilson in Carson City earlier this month issued an injunction blocking the implementation of the legislatively approved education savings accounts (ESAs), which were to be launched next month.

In doing so, the judge said the plaintiffs “have carried their burden of proof that SB302 violates Article 11, Sections 6.1 and 6.2 (of the state Constitution) and that irreparable harm will result if an injunction is not entered.”

Those sections state the Legislature shall fund public schools “for the population reasonably estimated …”

The judge ruled that the word “appropriate” means “to set apart for or assign to a particular purpose or use in exclusion of all others” and therefore using part of that appropriate for ESAs violates the state Constitution.

The chink in that argument is that the State Distributive School Account (DSA) is funded on a per pupil basis and if that pupil is no longer in a public school population is that funding still required to go to public schools?

The Legislature set statewide per pupil funding at just more than $5,710 per pupil in the 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.

Per pupil funding for public schools is not diminished by the savings accounts.

But apparently the judge took the view that the DSA fund is a lump sum that may not be diminished.

And just how are parents of public school children harmed if their schools get 10 percent of the funding for pupils who are not enrolled in their public school district? Additionally, public school districts keep the local and federal funding. Seems more like a benefit than an irreparable harm.

Actually, for some counties there might be a huge windfall, depending on interpretation of the law, because the DSA differs for every county. For example, Esmeralda is guaranteed $24,331 per pupil; Lincoln, $10,534; White Pine, $7,799; Eureka, $9,633; Mineral, $8,980; Clark $5,512; but Lander gets only $4,374 — with some adjustments for local property tax collections. Since the ESA payout is based on 90 percent the statewide average per pupil of $5,710, does each county keep the difference?

State Treasurer Dan Schwartz, whose office is designated to handle ESAs and who is named as the defendant in the case, says more than 4,100 accounts have been requested.

“Thousands of students and their distressed parents may see their plans upended,” Schwartz was quoted as saying.

Because the law requires students to be enrolled in public school for 100 days in order to qualify for an ESA, some parents have pulled their children from private schools and enrolled them in public schools. No irreparable harm there?

This should end up before the state Supreme Court. The sooner the better. Attorney General Adam Laxalt this past week filed an appeal with the Supreme Court. That appeal should be expedited for the sake of all Nevada children and parents.

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.

Update: On Thursday, Laxalt asked the Supreme Court to expedite case so it could be resolved in a matter months. He noted that a new school semester is starting and the new school year starts in seven months.

“Some parents have already been approved to participate in the program and as a result withdrew a child from one school and placed him in another. For many families, their ability to educate their sons and daughters as they believe best hinges on the existence of a fully implemented ESA program,” the motion explains the urgency. “But in the wake of the District Court’s injunction, and the uncertainty and disruption it unleashed, those families now face the agonizing choice of whether or not to continue pursuing the educational options best suited to their children. Some parents even face the immediate prospect of having to withdraw a child freshly settled in a happy new classroom and return her to one that failed her, or, in some cases, caused her emotional or physical pain.”

Motion to Expedite Appeal of ESA

 

ESA lawsuit: The phrase that everyone is ignoring

There is a key phrase that is being largely ignored in the debate over whether the legislatively approved education savings accounts (ESAs) are constitutional.

That phrase is: “for the student population reasonably estimated for that biennium.”

When Nevada voters approved the amendment to the state Constitution dubbed Education First, this is how the initiative was described:

Education first ensures our state’s public school system will be funded, before any other program for the next fiscal biennium, during each legislative session, by an appropriation the Legislature deems to be sufficient to fund the operation of our public schools for the student population reasonably estimated for that biennium.

Under Senate Bill 302, most parents who pull their children from public schools would be given 90 percent of the per pupil funding approved by the Legislature for that biennium. They could use it to educate their children by whatever means they choose — private school, tutoring, homeschooling.

Specifically:

This bill establishes a program by which a child enrolled in a private school may receive a grant of money in an amount equal to 90 percent, or, if the child is a pupil with a disability or has a household income that is less than 185 percent of the federally designated level signifying poverty, 100 percent, of the statewide average basic support per pupil.

The school funding bill, Senate Bill 515, states: “The basic support guarantee for school districts for operating purposes for Fiscal Year 2015-2016 is an estimated weighted average of $5,710 per pupil.”

District Judge James Wilson of Carson City in his injunction blocking enactment of the ESAs as unconstitutional declared that Article 11, Section 6.2 determined that “appropriation” means “to set apart for or assign to a particular purpose or use in  exclusion of all others” and therefore using part of that appropriation for ESAs violates the state Constitution.

In its entirety 6.2 states:

During a regular session of the Legislature, before any other appropriation is enacted to fund a portion of the state budget for the next ensuing biennium, the Legislature shall enact one or more appropriations to provide the money the Legislature deems to be sufficient, when combined with the local money reasonably available for this purpose, to fund the operation of the public schools in the State for kindergarten through grade 12 for the next ensuing biennium for the population reasonably estimated for that biennium.

So, if the population is reduced for each pupil pulled out of public schools, is that money still “appropriated”? Or is it then available for some other purposes, because the Legislature deemed the per pupil funding to be sufficient?

How are parents of public school children harmed if their schools get 10 percent of the funding for pupils who are not in their public school population? Additionally, public school districts keep local and federal funding. Seems more like a benefit than an irreparable harm to the parents of public school children.

Actually, for some counties there might be a huge windfall, depending on interpretation of the law, because the DSA differs for every county. For example, Esmeralda is guaranteed $24,331 per pupil; Lincoln, $10,534; White Pine, $7,799; Eureka, $9,633; Mineral, $8,980; Clark $5,512; but Lander gets only $4,374 — with some adjustments for local property tax collections. Since the ESA payout is based on 90 percent of the statewide average per pupil of $5,710, does each county keep the difference?

Attorney General Adam Laxalt has asked the state Supreme Court for an expedited ruling.