Winning the Blaine Game in Nevada

May 19, 2016


(Guest Post by Jason Bedrick)

As Matt noted earlier, a Nevada judge upheld the state’s ESA program yesterday. Here’s what the Institute for Justice had to say:

“Today’s decision is a powerful rebuke to the idea that school choice programs undermine education,” said Tim Keller, managing attorney for the Institute for Justice’s Arizona office, “The Nevada ESA program contains both hallmarks of a constitutional school choice program: parents, not the government, decide where their children go to learn, and the government stays entirely neutral with respect to religion.” The Institute for Justice (IJ) represents six Nevada parents who have been approved for ESAs.

ESAs are a cutting edge reform in finding ways to educate a booming population amidst strained state budgets. The ESA program deposits money into accounts controlled by participating parents, who then use it to design a customized education for their children. ESA funds may be used to enroll in private schools, hire tutors, buy textbooks and curricula, and even pick and choose among individual courses at public schools and universities.

“ESAs hand the reins over to parents,” explained Keith Diggs, also an IJ attorney in Arizona. “Kids don’t deserve to be stuck in a school that doesn’t suit them. ESAs will open up a huge array of options and create a market where parents can seek out the education their kids need.”

Over at the Cato-at-Liberty blog, I take a deep dive into the judge’s ruling:

Following the U.S. Supreme Court’s First Amendment jurisprudence, the judge held that the Nevada Constitution prohibits aiding one religion, preferring one religion over others, or aiding all religions in a manner that prefers religion over non-religion, citing in particular the state constitution’s declaration that the “free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed in this State.” The Blaine Amendment had prohibited “sectarian” instruction in the public schools, but did not preclude the legislature from enacting religiously neutral programs that would provide funding to families to educate their children in the manner they preferred, whether at a religious or secular institution.

…the Nevada judge held [that] any benefit to religious schools from the ESA was ancillary and indirect. The Blaine Amendment “was not intended to preclude any expenditure that has an incidental benefit to religion, where such is made for a primary secular purpose,” and the ESA “was enacted for the valid secular purpose of providing financial assistance to parents to take advantage of educational options available to Nevada children.”

Case dismissed.

Let’s hope the Nevada Supreme Court agrees.

Sorry ACLU-Court Rejects Blaine Challenge to ESA

May 19, 2016

(Guest Post by Matthew Ladner)

A Nevada judge dismissed one of the two lawsuits challenging NV ESA. From the ruling:

NV ruling


BOOOOMILICOUS victory, but the program injunction remains in place from the other case, and this all ends up in the Nevada Supreme Court.  It is always sickening to me to see anyone attempt to use provisions created by a past wave of anti-Catholic bigots, so it is always good to see such attempts fail.

From the Las Vegas Sun:

Education insiders around the country are keeping a close eye on the Nevada program, and its success or failure could determine whether similar sweeping programs are pushed in other states.

When it comes to the ACLU’s lawsuit, the judge dismissed the group’s argument that Nevada’s constitution only tasks the Legislature with ensuring a public school system.

“The framers indicated they intended to create two duties, a broad one to encourage education by ‘all suitable means,’ and a specific, but separate, one to create a uniform public school system,” judge Eric Johnson wrote in his opinion. “The Legislature can provide for a uniform system of common schools, free from religious instruction and open to general attendance by all Nevada children, and still adopt other suitable means of encouraging education.”

Johnson also dismissed the ACLU’s contention that allowing public money to be used to pay tuition at private religious schools violates the state constitution, which has been a central argument in lawsuits against ESA and voucher programs elsewhere.

Ruling can be read here.


Agent (Nelson) Smith brawl spills into the Deseret News, plus the Attack of the Clones!

May 1, 2016

(Guest Post by Matthew Ladner)

My Ed Next debate with Nelson Smith over the Nevada ESA program has spilled over into the pages of the Desert News. Moreover Agent Smith has cloned himself in the form of Nevada Education Association President Reuben Murillo Jr. and the Century Foundation’s Halley Potter!

We’re going to enjoy watching you die, Mr. ESA!

Oh well the more the merrier! From the story:

Murillo’s chief concern with the ESAs is that they will undermine financial and political support for “zoom schools” and “victory schools,” two programs Nevada launched in recent years targeted at low-income or English as a second-language students. The state commitment to funding such innovations will be undermined by the revenue lost to private schools, he argued.

Ah, well, fewer than 1% of eligible students applied during the first application period, so I’m a bit perplexed why this would have any impact on zoom and/or victory schools-may as well fear the NVESA program drawing down an asteroid strike to Vegas. Next up Halley Potter:

“The biggest losers in this model will likely be the most disadvantaged children, whose families lack the information and resources to access high-quality opportunities,” echoed Halley Potter, a research fellow at the Washington, D.C.-based Century Foundation.

The most disadvantaged children, whose families lack information and resources to access high-quality opportunities, have of course already lost big under the status-quo. I’m continually amused by the fantasy version of public education implicit in many critiques of choice, where Platonic Equity prances in fields of beautiful flowers on saddled unicorns. In Nevada “public education” for poor children often entails being crammed into portable buildings with long-term substitute teachers. 20 percent of Nevada FRL kids read proficiently in 4th grade- with hundreds of thousands of more students projected to be on the way.

Nevada is far from a fixed pie. As I told the Desert News:

“People who live back East have never seen the kind of crushing growth that we see here in Nevada and Arizona,” Ladner said. “The reality is that there is plenty of room for growth in public, private and charter schools at the same time.”

Information is something that can be addressed, and the ESA law stands in stark contrast to the public school system by actually gives more money to low-income kids. Wake me up when the rich Anglo kids in Incline Village are getting less than the poor Hispanic kids in Vegas under the district financing system, but this will happen the instant NVESA survives legal challenge, albeit without the unicorns and flowers.

Mind you NVESA is not a magic cure-all for every problem in the Nevada school system, but neither is anything else. NVESA deserves to be judged against the actual context is which it will operate and as a part of an overall reform strategy. If judged fairly and in context, fewer people would volunteer to serve as agents of the system.


Nevada Judge Issues Injunction Against ESA Program

January 11, 2016

[Guest Post by Jason Bedrick]

Terrible news today for families that had been hoping to start using education savings accounts to customize their children’s education:

CARSON CITY — A state judge Monday put the brakes on Nevada’s education savings accounts, granting an injunction sought by opponents who said it would drain critical funding resources from Nevada’s public schools and is unconstitutional.

District Judge James Wilson, in a 16-page ruling, said the state constitution requires “the legislature to set apart or assign money to be used to fund the operation of the public schools, to the exclusion of all other purposes.”

Wilson said because Senate Bill 302 diverts some general funds appropriated for public schools to fund private school tuition, it violates sections of the constitution.

“Plaintiff parents have met their burden of clearly proving that there is no set of circumstances under which the statute would be valid …” Wilson wrote.

An appeal to the Nevada Supreme Court is anticipated.

Let’s hope the case reaches the state supreme court speedily and that the justices act justly.

Dr. Fuller on RedefinED

August 10, 2015

(Guest Post by Matthew Ladner)

Dr. Fuller talks to RedefinED’s Travis Pillow on their podcast to discuss means testing, Nevada, etc. Dr. Fuller makes a number of good points, starting with the fact that just as universal choice never made any secret of what they view of what constituted an ideal choice program, that universal opponents like Fuller made no secret of their position. Fair enough.

Dr. Fuller states on a couple of occasions in the podcast that once you reach a certain level of wealth that the state should not be giving any aid for you to go to private school. In my view it is context that leads me to disagree with what otherwise seems like a perfectly reasonable proposition. That context is as follows: the podcast notes that currently the wealthy often wall themselves off in a highly economically segregated public school system that works to their advantage. Every state constitution guarantees public education and its not going anywhere, nor do I suspect that the ability of the wealthy to create enclaves within that system will be going anywhere any time soon.

Add this in to the fact that the wealthy pay more taxes than anyone else, but (uniquely of any education option) find themselves excluded from many private choice programs and we look to have created a powerful incentive for the wealthy to actively oppose private choice.  Policymakers took the decision to make public schools universal long ago, and every other option- open enrollment, magnet schools, charter schools, dual enrollment, online learning has followed suit.  School district offer the wealthy billions- they might say the ability to use and shape the billions they put in. If private choice offers them nothing which side of our struggle will they will find more appealing?

Imagine a district school official telling a student “Sorry Johnny we would let you participate in our dual enrollment program, but your parents pay too many taxes so it disqualifies you.” How about “We regret to inform you Susanne that your parents income has been too high to allow you to attend the University of Arkansas-which is reserved for low and middle-income taxpayers.” How about “economic diversity will not be tolerated in charter schools. We have learned about your father’s high income and you are hereby expelled!”

It has been easy to overlook this issue thus far as private choice has  been very small.  Growth beyond boutique status however necessitates confronting this sort of issue squarely. I think we have our hands full fighting the union bosses, superintendents, etc. without going out of our way to make enemies out of high income people in a way no other education option would even seriously entertain.

Wisconsin lawmakers would not have launched the modern school choice movement without a left-right alliance that required means-testing. I’ve supported a number of means tested programs in the past, and will continue to do so in the future. I don’t believe however that means-testing represents either a feature of an ideal private choice program or an ideal strategy for the private choice moving forward.  I do however agree with Dr. Fuller that we ought to make very conscious efforts both in the crafting of private school choice laws and in their implementation to guarantee the participation of low-income children. In Nevada I believe you will see philanthropic effort focus on Vegas, not on Incline Village. This is as it should be.

We should be very serious about inclusiveness in my view, but the river needs to flow both ways.