Working poor left behind?

It was the end of May, the last month of the 2015 Nevada Legislature. Senate Bill 302, providing for financial grants to parents who want to send their children to private school, had been introduced seven weeks earlier by Clark County Sen. Scott Hammond.

“Some argue our public schools will suffer because they fear funds will be siphoned away,” he said at the bill’s first public hearing. “This view is misguided for a number of reasons. School choice programs have been in place for more than 25 years, and yet, public schools continue to function. Many public schools have improved. Under this bill, the local school district will continue to receive a 10 percent per-pupil allocation even though the student is no longer in attendance.”

The measure had been through the formalities of basic processing in the education and finance committees but had otherwise laid dormant. Then on May 25, it suddenly came back to life, was rushed through Senate Finance and approved by the full Senate.

The big problem now was that the Assembly had not yet even seen the bill, and there were only four days left in the 2015 session.

Even in the Senate, the scrutiny of the bill had been less than vigorous. The questioning in the education committee, even from the Democrats, had been superficial. In the finance committee, it had been better, particularly from Republicans Ben Kieckhefer and Pete Goicoechea. But it was not the kind of examination highly polarizing measures should get. And now there was little time for the Assembly to do its part—nor did it. Assembly Education held a hearing on May 28 and voted the bill out without changes the same day. The full Assembly approved it on a party-line vote the next day. The governor signed it on June 2.

The law allows a parent whose child has been in public school for at least 100 days to receive an education savings account worth $5,100. The amount is $5,700 for low-income families and students with disabilities. Parents may use the grant however they wish so long as the spending is school-related. (They will receive debit cards.)

Some funding has also been provided so that the families of some low-income students—perhaps up to a thousand—can receive an additional tax credit valued at as much as $7,775. But it is regarded as a token. There are nearly a half-million public school students in the state.

State funding for public education in Nevada is low and has been for many years—$5,590 per pupil for the past two years. Even when adding federal and local funds together, Nevada students received just $8,339 each since 2013, substantially below the national average. The state also ranks poorly in most national rankings. A few days ago the financial news site WalletHub named Nevada schools the second worst among the 50 states. The same week, the Kids Count Data Center placed Nevada dead last. But conservatives in the state have attacked public education itself, not low funding, as the cause of those rankings.

When the content of the bill became known outside the state, it received wide coverage and analysis—more, indeed, than it had received at the Legislature. Within the state, it has encountered heavy criticism from—of all people—parents who send their children to private school.

As Nevada officials struggle against rising criticism to implement the new law, it is being debated around the nation in education and political circles.

Opponents of the new program have said its supporters are trying to destroy public education, a claim conservatives scoffed at, but conservatives wield their own hyperbole: “Gang members or productive citizens—parents have the choice” was the headline on a column defending the program by GOP figure Jim Clark in the North Lake Tahoe Bonanza.

“Why Your State Should Copy Nevada’s School Choice Plan” was the headline of a post by the Heartland Institute, a climate change denial organization, posted before problems started showing up in the Nevada plan.

“Nevada’s New Voucher Plan Is Designed to Bankrupt Public Schools” was the headline on an article at AlterNet, a service for alternative news outlets.

Those headlines show the range of reactions that have unfolded.

“This is a voucher on steroids,” Fordham Institute president Michael Petrilli told the Christian Science Monitor.

The Monitor further reported, “Nevada is not the first state with ESAs [education savings accounts], but it is the first to offer them not just to select groups of students. Nevada is giving them to all who have been enrolled in public school for at least 100 days—about 453,000 children, or 93 percent of school-age students in the state. … The universal aspect is groundbreaking, but the fact that Nevada chose ESAs, instead of vouchers and tax-credit programs, ’makes it even more innovative and monumental,’ says Lindsey Burke, an education policy fellow at the Heritage Foundation, a conservative think tank in Washington.”

“Watch Nevada closely,” the Chicago Tribune editorialized. “It could be the template for how we educate children in Illinois”—probably the first time anyone has said that about the state with arguably the worst schools.

Meanwhile, news coverage and commentary around the nation have provided interesting and original views of the new law, with conservatives—even while endorsing the program—raising some serious questions about it, particularly whether it will undercut equality of education. And some liberal voices have taken a wait-and-see or even a supportive stance.

American Enterprise Institute researcher Nat Malkus 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.”

It was also in U.S. News—which has provided some of the heaviest coverage of the Nevada program—that David Osborne wrote that the new law “allows families to add to their education savings account to buy a more expensive education. Most parents want what’s best for their children, so those who can afford it will do just that. Those who can’t will not. And the education market will stratify by income, far more than it already does. In a decade, it will look like the markets for houses, cars and other private goods, with huge disparities based on wealth. I just don’t get it. We need bold reform of education, yes. But do we want to widen the achievement gap? Do we want to increase inequality in America? More than half of public students in America are poor (i.e., they qualify for a free or reduced price lunch). Do we want to leave them all behind in inferior schools?”

In the African-American newspaper New Pittsburgh Courier, Marquette University scholar Howard Fuller wrote of the Nevada program, “I hold no malice toward them, but I will never support a plan that will no longer give low-income families a leg up and will instead give those of us with even greater means to leverage the limited number of private school options to the disadvantage of low-income families. So, I will not join the celebration of the Nevada Education Savings Account Program. While some may view it as a ’landmark’ victory for the parent choice movement, I do not. At least it is not a victory to those of us who are focused on helping low-income and working class families in their quest to find better options for their children.”

In Forbes magazine, Jon Hartley and Alex Verkhivker wrote, “Although the ESA helps families cover over $5,000 … most private schools in the state of Nevada ask much more than that. Those families that can’t afford to pay the extra amount will be priced out of the private school market. The biggest concern is whether the demand for private schools as a result of the ESA legislation will be commensurate with supply. A shortfall in demand could have the effect of deteriorating the quality of private schools, particularly at the beginning stages of the ESA program.”

But in National Review, the magazine founded by conservative thinker William F. Buckley Jr., Lindsey Burke of the Heritage Foundation observed, “It’s an a la carte education, and the menu of options will be as hearty as the supply-side response—which, as it is whenever markets replace monopolies, is likely to be robust. Notably, families can roll over unused funds from year to year, a feature that makes this approach particularly attractive. It is the only choice model to date that puts downward pressure on prices. … The future of education financing is here.”

Clint Bolick in the Wall Street Journal seemed bewitched by the technology, pointing to Nevada’s use of ESAs and debit cards. “Education savings accounts are an innovation; they harness the capacity of modern technology to deliver high-quality, tailored education to every child in the state. Families can mix and match educational offerings to meet their children’s needs and aptitudes, perhaps combining interactive distance learning with a local high-school chemistry lab and a tutor in mathematics.”

At Education Week, Rich Hess wrote, “Finally, per usual, I’m puzzled as to why teachers aren’t embracing this kind of reform and all the possibilities it holds for them. … [P]lenty of teachers in Nevada are frustrated with testing, disciplinary issues, teacher evaluation, accountability systems and more.”

Burke also wrote, “Accountability is infused throughout the ESA option.” But in U.S. News, Osborne questioned accountability—“Participants will have to take a nationally norm-referenced test in math and English every year, but they get to choose which test, so there will be no universal measuring stick by which to compare performance.”

If the Nevada Assembly gave the new law the once-over-lightly treatment, the nation’s press did better.

A problem for the Nevada program is that the best private schools in the state, particularly in Clark County, are religious schools. A court challenge to Hammond's new law is expected. On June 29, the Colorado Supreme Court overturned a voucher program because it channels public funds to religious schools in violation of that state's constitution.

Nevada law has always been suspicious of religion. The state’s founders qualified the Nevada Constitution’s guarantee of religious freedom: “… but the liberty of consciene [conscience] hereby secured, shall not be so construed, as to excuse acts of licentiousness or justify practices inconsistent with the peace, or safety of this State.”

That wasn’t enough for Nevadans. Twice after statehood, they voted for state constitutional language barring the use of public funds for religious schools: “No sectarian instruction shall be imparted or tolerated in any school or University that may be established under this Constitution. … No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.” Additional language revokes funds from school districts if they try it.

If, as seems likely, the Nevada program is challenged in court, the state attorney general’s office will defend the law, and there is no way of knowing what legal approach it will take, but Sen. Hammond has offered one himself. He argues that the state is not providing money directly to schools, religious or otherwise. Rather, it is giving money to parents and they are giving the money to schools. By laundering the money through the parents, he told a Senate hearing, the constitutional prohibition can be avoided altogether.

“Some argue this grant program is unconstitutional,” he said. “Article 11 of the Nevada Constitution states, ’No public fund of any kind or character, state, county or municipal, shall be used for sectarian purposes.’ Senate Bill 302, in providing school choice and establishing an education savings account grant program is consistent with this provision. This bill will provide families with financial assistance for the purpose of education. It does not benefit or provide funding to private institutions, sectarian or otherwise. Under this program, no dollar is predestined for any particular institution. Rather, parents have the choice to spend their education dollars in keeping with their values. This bill does not require students to enroll in a private school or in a sectarian private school.”

He argued that state Medicaid does not specifically fund religious hospitals like Reno’s St. Mary’s.

“The same is true for grants provided under S.B. 302. Grants are used to purchase educational goods and services and provide an education uniquely tailored to meet students’ educational needs.”

Just as the bill was rushed through in the closing days, the post-legislative process has been rapid. Critics suspect advocates of the measure are trying to get applications in the pipeline and parents committed to the program before legal action can be taken to stop it.

When State Treasurer Dan Schwartz—who has already started taking applications for the grants—held a July 17 public meeting to get input on writing regulations to implement the law, he got an earful. Those who attacked the new law were mostly private school parents. It became clear that either legislators had not anticipated one big problem or that they had made some wrong assumptions. If they had believed that those who were affluent enough to already be sending their children to private schools would not want the $5,000-plus grants, they were mistaken. Private school parents were not one bit happy that the grants were available only to those students leaving public school.

Parents took aim at proposed state treasurer regulations requiring enrollment in a public school for 100 days before ESAs can be obtained. This means private school or home school families are not eligible. However, their criticism of the regulations is misplaced. It’s the law passed by the Legislature, which regulations merely implement, that plainly limits the grants to parents who pull their children out of public school and take their per-pupil allocation with them—a provision that lends support to the notion that supporters are trying to damage public education.

Schwartz has proposed a one-time exemption for parents whose children were in public school during the 2014-2015 school year, and the Las Vegas Review-Journal has endorsed this idea. But the new law does not provide for exemptions. The term appears nowhere in its language.

This isn’t the first time that laws slipped through in the closing days of the legislature turned out to be uncooked, but it’s a lesson that seems to go perpetually unlearned.

The Legislature is bi-cameral for a reason. Scrutiny in a second house frequently turns up problems that were overlooked in one. But that doesn’t work if one house doesn’t do its job.

Democrats have said they will repeal this and other new Republican programs if they regain their majorities, but whether they will follow through if faced with an already-functional program is uncertain. If caving in were an Olympic sport, Democrats would always medal.

Meanwhile, all players wait on possible lawsuits.