Legislators get an education

Without fanfare, the special session of the Nevada Legislature ran an end-run around the law to try to solve a prickly political problem left over from this year’s regular session.

The lawmakers approved Senate Concurrent Resolution 1, which attempts to do what their May legislation paying parents to take their children out of public school did not—exempt military and other newly arrived families from a 100-school-day threshold.

In May, during the closing days of the regular February-May 2015 legislative session, lawmakers revived Senate Bill 302—which had previously fallen dormant—and rushed it through the process to enactment and approval by the governor. It created state grants for parents to use for private school tuition or home schooling expenses if they first pulled their children out of public school after 100 days of attendance. The grants are in the $5,000 range.

Though advocates of the program said the grants were intended for families of all incomes, they are not large enough for tuition at most private schools in the state, and nearly all the applications for grants have come from the state’s five most affluent zip codes, according to reporting by the Reno Gazette-Journal’s Trevon Milliard.

The 100-day threshold quickly became a source of dispute, since entering students, students already in private or home schooling, and arriving military families are ineligible.

State Treasurer Dan Schwartz, who is designated by SB 302 to administer the program, said he will give grants to military families anyway, based on the legislature’s 2009 approval of a document called the Interstate Compact on Educational Opportunity for Military Children.

That compact was designed to ease the way for students whose families jump from duty station to duty station. It deals with “enrollment and education of certain children of military families in public schools” (italics added) but does not authorize services or privileges not available to resident families. Actually, it’s devoted mostly to mundane matters like immunizations.

Now, the special session’s concurrent resolution claims that “the original purpose and intent” of the legislature was to allow “education savings accounts to be established for pupils younger than 7 years of age who are not required by statute to attend school but who are eligible to be enrolled in a public school, regardless of whether such pupils have been enrolled in a public school in this State for at least 100 school days without interruption during the period immediately preceding the establishment of the education savings account; and … Have S.B. 302 interpreted in harmony with the Interstate Compact on Educational Opportunity for Military Children … to remove any barriers to educational success in educational programs like the education savings account program for pupils of active duty members of the military who are stationed at military installations in Nevada.”

That would, if it were treated as a law, allow children newly arrived in school and children in military families newly arrived in Nevada to receive grants, called educational savings accounts (ESAs). But that raises the question, if that is what the legislators meant to say in May, why didn’t they say it? Why didn’t they include the December language in the May enactment?

Last month, Las Vegas columnist Steve Sebelius wrote, “Unfortunately, no matter how much we may dislike it, the black letters of SB302 don’t yield to the wishes of the treasurer, ESA parents, the governor or anyone else.”

Nor to the ex post enactment of a concurrent resolution.

Not all acts of the legislature are created equal. According to the Nevada Legislative Manual, “A one-house resolution expresses facts, principles, opinions and purposes of one house. A concurrent resolution expresses facts, principles, opinions and purposes of the two houses and may authorize the creation of joint committees. A joint resolution memorializes federal officials to engage in an action, proposes amendments to the Nevada Constitution, or ratifies amendments to the U.S. Constitution.”

Thus, of these types of resolutions, only one has the force of law—the joint resolutions, when they are used for amending purposes. The concurrent resolution is merely an expression of legislative sentiment. In this case, it is effectively saying, “This is what we meant to say in May, if we had not been hurrying this bill through the process before we realized all its implications.” But a concurrent resolution cannot amend a statute. (Concurrent resolutions are not signed by governors, either.)

It is true that courts sometimes look to other indicators of legislative intent such as floor debates when there is doubt about the language of a law. But in this case, there is little doubt about SB 302. A reading of the plain text of the original statute suggests the law was intended to do exactly what it says—get Nevadans to remove their children from public schools. And even if courts turned to other indicators of legislative intent, those do not support the advocates of the school grants.

Former Nevada legislative lawyer Frank Daykin used to say that the language of the law, not debates or committee minutes, indicate legislative intent. But he was in a minority in the legal community on that. Courts have often used debate and committee proceedings to determine intent. In this case, even if someone went looking for evidence that the lawmakers intended all along that the policy laid out in the December concurrent resolution be followed, there is none. The minutes and the floor debates do not raise the issues that the legislators seek now to settle with Senate Concurrent Resolution 1.

Had the advocates of SB 302 not waited until the last minute to try to ram the bill through the legislature in May, there is a good chance there would have been some discussion of military families and new arrivals. But by trying to slide it through late in the legislative session, they reduced the chance of that. The bill was closely examined only in the Senate, then was rushed to the Assembly four days before the legislature ended where it was given a once-over-lightly before being approved and sent to the governor.

In addition, the Interstate Compact on Educational Opportunity for Military Children does contain some language on immunizations that allows children in military families some leeway in getting immunized or establishing they have been immunized after they arrive in the state. If that is the way to create exceptions to the compact, legislators failed to add language to create exceptions to the school grants program.

At the moment, it appears that the May enactment already puts the state in compliance with the Interstate Compact, by requiring military families to do the same thing as all other families in the state—put their children in public school before applying for the state grants.

Two lawsuits, filed against the school program by a parents group and the American Civil Liberties Union of Nevada, are unlikely to raise any of these issues. They have put most of their eggs in the religious basket—challenging the school grants as a breach of church and state. The ACLU’s Amy Rose said in a prepared statement, “We are disappointed to see the Nevada Legislature take legally dubious actions in an attempt to legitimize regulations of the already unconstitutional voucher bill. However, as our current focus is halting implementation of the unconstitutional voucher program in its entirety, these actions will not impact our suit.”