Gibbons Wants Hearing on School Voucher Competition: Claims Would Improve Educational Opportunities for Children

By Sean Whaley | Nevada News Bureau
CARSON CITY – A handful of state lawmakers have tried and failed over the years to establish a voucher plan for Nevada students, giving parents a share of their taxes spent on public education so they can pick a school that best meets the needs of their children.
While other states have had some success, such measures have gone nowhere in Nevada. Two bills were introduced in the Assembly in 2009 to begin such programs. Neither bill even got a hearing.
Now Gov. Jim Gibbons has taken up the issue, making a school voucher program a central piece of his education reform plan. Gibbons, in his state of the state address Feb. 8, asked lawmakers to give his plan a hearing at the special session set to begin Feb. 23. It also includes a repeal of mandates for all-day kindergarten and class-size reduction and a repeal of the state’s collective bargaining law.
“I believe that we need to give the choice of education back to parents and get them involved,” he said after the speech. “We have 142 schools in the state of Nevada that are rated as the worst schools in the nation.”
Gibbons said parents of students attending these schools should have the choice to go elsewhere.
“I believe that vouchers give that choice to parents,” he said.
A school voucher proposal was not part of Gibbons’ proclamation issued this week calling for the special session. Robin Reedy, chief of staff to Gibbons, said the intent is to get the budget shortfall and flexibility issues dealt with first.
“We fully intend on amending the proclamation between now and sine die (the end of the session),” Reedy said.
A school voucher measure will be one of those amendments, she said.
The five-page bill creating the “educational scholarship” as now written would not result in an immediate savings to the state budget, said Stacy Woodbury, deputy chief of staff to Gibbons.
The plan remains a work in progress, with the Gibbons Administration analyzing how best to make the vouchers available. They could be given to parents to give to the school of their choice, which would then be turned into the Department of Education for reimbursement, or given directly to parents.
In an interview last week, Gibbons said that is still being analyzed to determine the best approach to ensure the program is constitutional.
“I have no preference for whether a voucher goes to school or to a parent,” Gibbons said. “If the constitution will allow for it, I’m happy to send it directly to parents.”
Woodbury said the proposal would provide 75 percent of the local school district’s pupil support to the private school.
If tuition was less than 75 percent of the support, then the lower amount would be provided, Woodbury said. If the cost of the school program was more than 75 percent of the support, the parents would have to make up the difference. The other 25 percent of the pupil support would remain with the local school district.
Private schools would have to be licensed by the state Department of Education to participate, she said. Those private schools that are not licensed would be ineligible. There are about 75 so called “exempt,” or non-licensed schools, operating in Nevada right now.
Licensed schools must use licensed teachers and follow other requirements. Students would have to pass the high school proficiency exam to earn a diploma.
Woodbury said under the governor’s plan, religious schools would not automatically be prohibited from participating. If a religious-based school spent 25 percent of its time on religious instruction, then it could be argued the 75 percent state support would go to the academic instruction portion of the curriculum, she said.
The Gibbons administration believes the proposal is constitutional under the Nevada State Constitution, Woodbury said.
Carson City attorney Scott Scherer, a former state lawmaker who worked on one of the voucher proposals introduced in 2009, said Nevada does not have a lot of case law on the issue, so predicting how the Nevada Supreme Court would rule on such a program is difficult to predict.
But one key element in withstanding a legal challenge is ensuring that only schools that are true educational institutions and that have the appropriate curriculum can participate, he said. Schools that offer a primarily religious education should not be included, Scherer said.
“I think if it is a legitimate educational institution meeting the needs of students to prepare them to graduate from high school and go on to college, then a religious affiliation would not prohibit a school from participating,” he said.
Not everyone agrees.
Article 11, Section 10 of the Nevada constitution is a provision called a Blaine Amendment dating back to statehood, which prohibits the expenditure of public funds on “sectarian purposes.”
Courts have rejected voucher school programs in other states because of these Blaine Amendments.
Lee Rowland, northern coordinator for the ACLU of Nevada, said a reading of the state constitution suggests there is no way a voucher plan in any form would withstand a legal challenge.
“We at the ACLU cannot imagine a voucher program that gives direct taxpayer funding to secular institutions that can in anyway comport without our constitutional prohibition on using public money for religious purposes,” she said.
Rowland said the prohibition “creates a very real hurdle for anyone trying to institute a voucher program in Nevada.”
People have a right to attend religious schools, just not with public funds, she said.
The Institute for Justice, a civil liberties and public interest law firm, disagrees with the ACLU interpretation. In its analysis of Nevada law, the organization says there are no recent court rulings or attorney general opinions addressing the issue.
“Although Nevada’s Legislature passed a law requiring that money allotted for public schools be used exclusively for public schools, NRS 387.045, other public money – general revenues or lottery proceeds, for instance – could support a voucher program,” the institute says in its analysis.
Andrew Campanella, a spokesman for the Alliance for School Choice, took issue with the ACLU interpretation of the Nevada constitution, saying the organization, “is taking liberties with the state’s constitution in their attempt to deny parents the opportunity to choose the best schools for their kids.”
“It is not surprising, given the ACLU has fought tooth and nail to deny deserving children the opportunity to achieve their own American dreams,” he said.
Woodbury said that if a voucher plan is approved by the Legislature, it would take some time to implement. The state Board of Education would need time to prepare for the new program, and so it might not get under way until the fall of 2011. While access to private schools might be limited at first, establishing the voucher program would allow for new schools to become licensed and offer educational opportunities, she said.
The same process happened with charter schools, she said. When the law first passed in 1997, it took awhile for the schools to be established. There are now 28 such schools operating in Nevada, according to the Department of Education.
There are about 422,000 students in the Nevada public school system now.
Many states have offered vouchers to select groups of students, such as special needs, Woodbury said.
“I say any child should be eligible,” she said.
“I commend the governor and his staff for bringing this forward,” said Assemblyman Ed Goedhart, R-Amargosa Valley. “For people who truly care about educating our children, they talk about getting parents involved. What better way to get parents involved than to give them a choice.”
Goedhart, who proposed one of the school choice bills in the 2009 session that did not get a hearing, said a voucher program has not moved forward in Nevada because the politically powerful educational establishment enjoys its monopoly.
But offering competition would be best for Nevada’s children, and could even reduce the need to build new public schools, he said.
“We have to embrace innovative approaches to education, and one of those is vouchers,” Goedhart said.
While there may be room for a discussion on the issue, a special session of the Legislature that has to address an $881 million budget shortfall is not the time or place, said Assembly Majority Leader John Oceguera, D-Las Vegas.
“We’re open to just about anything that will get us through this budget crisis,” he said.
But Oceguera said is unrealistic to think the Legislature could consider such a major policy shift given the state’s pressing fiscal crisis.
Sen. John Lee, D-North Las Vegas, said he too does not believe the special session is the time to take up such an issue, although new ideas are always worth a look.
“We’ve got other things on our plate,” he said. “I am a big proponent of public education based on the success me and my family has had with the system, but I do believe we should be looking at new and innovative programs.”
Gibbons disagrees, saying in an op/ed piece Jan. 8 that a special session is the right time to consider education reform.
“Clearly legislators have not had time in their regular 120 day sessions every other year to address education reform. What better time to focus on reform than in a special session where topics are limited to a very few items?” Gibbons asked.
Woodbury said that since the governor has the exclusive authority to set the agenda for a special session, the Legislature should be prepared to review his education reform plan later this month.
“If they do not consider his plan, he may call them back in again, yes,” she said.
Goedhart also said the special session is the appropriate place for such a discussion. By putting it on his agenda, Gibbons and school voucher supporters will get a chance to see where lawmakers stand.
“The voters, residents and citizens of Nevada will finally get to see how lawmakers are voting on such a crucial issue,” he said.
Keith Rheault, state superintendent of public instruction, said any shift to private schools would be slow because of the limited availability. There are about 96 licensed private schools in Nevada now.
The licensed private schools are serving just under about 9,000 students statewide.
But Rheault said most of these schools offer only kindergarten or elementary grade level programs, and several school districts have no such schools operating as all.
“Most are in Clark and Washoe,” Rheault said. “Only eight districts statewide have private licensed schools.”
Rheault said from his agency’s perspective, the challenge of a voucher plan would be ensuring accountability. The state would need to verify the student enrolled in the school and attended, he said.