Under what authority?

State Treasurer Dan Schwartz has announced that he will carve out an exemption for military families that will permit them to obtain grants to pay for private schools without complying with a 100-day rule mandated by the statute.

But the statute does not contain authority for the treasurer to offer exceptions to the legal requirements for the average $5,000 grants created under the statute.

The law is already under two legal challenges in court, one by a group of parents and the other by the American Civil Liberties Union of Nevada.

Under the law, parents can receive grants of about $5,000 when they remove their child from public school and send them to private school.

The law permits a parent whose child has been in public school for at least 100 days to receive an education savings account worth $5,100, provided to the parent on a debit card. The amount is $5,700 for low-income families and students with disabilities.

The child must first have gone to public school for at least 100 days. It is this requirement Schwartz said he will waive. Gov. Brian Sandoval has endorsed the exemption for military families.

Schwarz must adopt regulations for implementation of the law, and it is through those regulations that the treasurer said he will try to create the exemption. Schwartz had originally said he would try to exempt both military families and parents of kindergartners, but ended up exempting only military families. His news releases did not specify under what authority he was acting, and he could not be reached for comment, but the governor’s office said the Interstate Compact on Educational Opportunity for Military Children provides legal authority.

That compact was adopted by the Nevada Legislature six years ago in Senate Bill 303 of the 2009 Nevada Legislature. It is designed to ease the way for students who move from place to place and covers “enrollment and education of certain children of military families in public schools” (italics added). It does not provide language authorizing exceptions to existing statutes. In fact, in one instance, it allows disabled students some latitude while still requiring that state law be followed: “The board of trustees of a school district may adopt a policy to exempt pupils who are physically or mentally unable to attend school from the limitations on absences. … A pupil who receives an exemption pursuant to this subsection is not exempt from the minimum number of days of attendance prescribed.”

The compact does not address the specific policy involved in the Nevada school grants program. Most of it deals with fairly pedestrian things like course placement, immunizations and exit exams.

Sen. David Parks, a Clark County Democrat who served on the Finance Committee—one of two committees in the Senate that processed the measure—said he does not remember anyone discussing granting the treasurer such authority.

“I have no recollection of that ever coming up,” Parks said. “It was late in the session, but there was certainly every opportunity for us to add that kind of language if we chose to do so.”

He said there was considerable dialogue all during the 2015 legislative session about “veterans and active duty military” and so if the committee wanted an exception it would have created one.

“This is well beyond what is in the statute,” Parks said of the state treasurer’s action. “It is not within his legal authority.”

Amy Rose of the American Civil Liberties Union of Nevada said her group also suspects the law bars exemptions, but that it will not broaden its court challenge beyond its original constitutional grounds.

“Although the treasurer’s creation of broad exemptions from the voucher program may be outside the bounds of his rulemaking authority, our current focus is halting implementation of the unconstitutional voucher program in its entirety,” she said.

Attorney Justin Jones, representing the parents group that is also challenging the law in court, took a similar view.

“Parents of public school children have brought a facial challenge to the constitutionality of the voucher law and have asked the court to block its implementation,” he said.

The approval of the new law as Senate Bill 302 drew widespread attention to Nevada because of its expansive provisions, with the Chicago Tribune editorializing that it might “be the template for how we educate children in Illinois.” But it is far from certain that the law will survive even in Nevada. The two lawsuits could bring it down, and Democrats have vowed to repeal it if they get back a legislative majority.

In addition, early concerns that it would subsidize mainly upper income families has come to pass.

Within days after the enactment of the new law, American Enterprise Institute researcher Nat Malkus conducted his own inquiry and then wrote in U.S. News & World Report, “But market-based reforms depend on a functionally competitive market, and educational savings accounts alone cannot guarantee that. … My colleague Elizabeth English and I conducted a randomized survey of half of Nevada private schools (enrolling 50 or more students in 2011-12). The median private school was just over $8,000. Less than 20 percent of schools had tuitions below $5,200, and a quarter had tuitions below $5,700. On the one hand, these tuition prices bode well for a viable school choice market, because some options can be had with the educational savings account alone. On the other, families that can’t afford to supplement their accounts will be priced out of over half of Nevada’s private schools at current tuition rates.”

On Oct. 29, Trevon Milliard reported in the Reno Gazette-Journal that “only 7 percent of students applying for the money live in areas reporting low household income, while nearly a third of takers reside in the state’s richest zip codes where median household incomes exceed $75,000 at the least. A vast majority of applicants—80 percent—live in neighborhoods where median household incomes outpace the state median of $51,000, according to the Reno Gazette-Journal’s analysis of information released about the 3,000 students seeking public money for private school.”

The program also provides some funding so that the families of some low-income students can receive an additional tax credit valued at as much as $7,775. But it provides only enough for about a thousand families in a state with half-million public school students.

Whether the courts will act on the lawsuits, either for or against, before the program is a going concern is uncertain. “My office continues to march towards full implementation in January and make the first payments to account holders in February, 2016,” Schwartz said in a Nov. 11 prepared statement.