ESAs are raid on public funds in disguise

By Bradley Schrager

The funding mechanism for Nevada's Educational Savings Accounts, enacted by legislative Republicans in 2015, was always a tawdry little parlor trick. Here's how the game went, see if you can follow the queen:

Thanks to Gov. Jim Gibbons' Education First initiative, the Legislature must set aside money for public schools first, each biennium. Most of that goes into the Distributive Schools Account. This amount can be, for statistical purposes, described on a per-pupil basis. You simply take the total amount budgeted for public schools and divide it by the number of schoolchildren at a given time. In Nevada, that comes out to roughly $6,000 per student.

Using that number, the cleverness of ESAs was to take $5,100 or so of that figure and send it to parents so they could use it for private school tuition or home school expenses. That allowed ESA proponents to claim that the program actually increased public school funding, because a child for whom $6,000 was budgeted was leaving $900 in the kitty after pulling out of public schools. More money for those left behind, the argument went.

(Leave aside, for now, the basic dishonesty of this equation, which ignores the fixed costs of school systems. The schools these children would leave behind would still need, say, electricity, teachers, and custodians, for example.)

This was the basis for the infamous 100-day requirement. Parents who wanted their ESA funding would need to enroll their child in a Nevada public school for 100 days, because that was the trigger for counting that student for purposes of the Distributive School Account budget line. Those 100 days, in other words, were what created the $6,000 of state funding from which the parent would draw the $5,100 upon withdrawal from public school. It was the engine of the entire scheme: get the money budgeted so that it could be shipped back out in the form of ESAs.

(This, too, was fundamentally dishonest. A second-grader leaving for private school would have had their money budgeted for them in that year's Distributive School Account. But what happens in eleventh grade, when that child hadn't set foot in a Nevada public school in a decade? Where would the continuing funding come from, once the child was no longer budgeted for? To this Republicans had no answer.)

The program thus had its grail, parental choice, and its funding engine, the Distributive School Account. The money would flow, automatically, with no obvious impact on overall budgeting. The illusion was complete.

Enter the Nevada Supreme Court, however, which last summer ruled that the plan to fund ESAs out of public school funds was unlawful. Monies set aside for public schooling must be spent on public schools, not paid out to private citizens for use elsewhere.

ESA proponents played the ruling as a victory, but in fact the Supreme Court's decision pulled the curtain from the entire plot. You can run an ESA program, it ruled, but you have to find the money somewhere else. It must come from other sources, presumably general fund taxes. This directive destroyed the program. Gone was the automatic funding engine. Gone was the 100-day rule, now unnecessary and fiscally damaging because it would double the cost of ESAs to the state.

GOP legislators haven't said what new eligibility rules they envision or would accept. They've balked at means-testing to limit the program to low-income families, and have not dealt at all with the yawning gap between the value of ESAs and the price of private school tuition, which in most instances runs far more than $5,000. This gives the lie to proponents' false concern for poor families they believe are trapped in underperforming schools. The data so far shows that most current ESA applicants come from well-to-do neighborhoods.

What is left, if you're a Republican legislator, is defending a straight-cash giveaway of general taxpayer funds to parents whom either already have children in private school or likely have the means to put them there. This cannot be stated clearly enough: ESAs in their current form would take Nevada taxpayers' money and simply hand it to upper middle-class parents to put towards private school tuition.

This is not principled school choice; it's a daylight raid on public funds by the most fortunate among us.

Whatever you think of the ESA program, vouchers, or school choice initiatives generally, this is the scheme—this midway sucker's game—to which Republicans have staked the entirety of their 2017 session, threatening to block all budgeting until they are paid off. If we are going to have a legislative standoff over this program, we can at least be honest about the specific hill the GOP says it will die on.

Bradley Schrager is an attorney in the Las Vegas office of Wolf, Rifkin, Shapiro, Schulman & Rabkin, and was on the legal team that successfully challenged ESAs in Nevada courts.



Attorney General's office says court orders ease path for ESA revival

By Riley Snyder, Michelle Rindels and Megan Messerly

The Nevada Attorney General’s Office is declaring victory after lower court judges issued a narrow block on the state’s Education Savings Accounts program, meaning it should be easier to revive if lawmakers decide to fund it.

Opponents of the voucher-style school choice program had hoped the judges’ orders would have broadly declared SB302, the original bill creating the program, unconstitutional. Lower court orders issued Tuesday and last week took a more limited stance, putting the program on hold until a constitutional funding mechanism is found.

The parties have been engaged in a quiet battle since the Nevada Supreme Court ruled in September that the program’s initial funding mechanism violated the state’s constitution. They’ve tried to influence the phrasing of the lower court orders that actually implement the major decision.

The program, which would allocate up to $5,100 to parents with children enrolled in public school for use in a broad range of educational expenses, will likely re-appear at the Legislature after Gov. Brian Sandoval called for $60 million to fund the program during his State of the State speech on Tuesday.

Opponents of the program have argued that the Court’s September decision effectively entombed the program, especially given new-won Democratic majorities in the state Legislature.

“I think the Supreme Court is just a hard read. We’re going to be quibbling about what that court means for the next decade,” said Sylvia Lazos of Educate Nevada Now, which supported one of the two lawsuits against the program.

Proponents, including Republican Attorney General Adam Laxalt, have framed the decision as a simple funding issue requiring a legislative appropriations fix.

"We are pleased that yet another District Court Judge agreed with our interpretation of the Nevada Supreme Court’s decision on Nevada’s pioneering Education Savings Account law," Laxalt said in a statement.

An order from District Judge Eric Johnson yesterday barred enforcement of the ESA program using the narrow language that Laxalt and proponents had hoped for — “absent appropriation consistent with the Nevada Supreme Court’s opinion.”

In a separate case, District Judge James Wilson last week granted a motion by Laxalt clarifying that only the funding source of the ESA program is unconstitutional, according to the Las Vegas Review-Journal. The decision allows the state treasurer’s office to continue accepting applications to the program.

While seemingly minor, both lower court decisions are heralded by supporters as clearing the way for the program to operate if specific funding is allocated.

“The difference between invalidating a law and conditionally enjoining enforcement of a law is one that eliminates the law from the books and the other keeps it on the books awaiting the removal of whatever obstacle exists,” Laxalt wrote to the court in December.

Republican lawmakers approved SB302 during the 2015 Legislature on a strict party-line vote. Opponents of the ESAs say they’ll have to see whether the Democrats who are now in control will hold fast against the program.

“There’s a lot of outside money coming in and there’s no way that we can match the millions of dollars“ coming from the other side, Lazos said. “We will continue to engage in dialogue about basic values like equity, transparency, and does this make sense in terms of public policy.”

Opposition to Request to Enter Proposed Order Issuing Declaratory Judgme... by Riley Snyder on Scribd

Motion for Permission to File Sur Reply Mot by Riley Snyder on Scribd

Order Issuing Declaratory Judgment and Permanent Injunction by Riley Snyder on Scribd

NO on ESAs: Private schools lack transparency and accountability

by Margaret Wagner

Implementing vouchers (ESAs) in the state of Nevada is a troubling concept for many reasons. As an 18-year veteran teacher in the Clark County School District, I have spent my career working within the education system and have had to learn to do more with less each year to educate my students under increasing oversight and accountability. If vouchers are implemented in the state of Nevada, public school teachers will be expected to continue to do more with even fewer financial resources.

As the system functions now, public schools are funded at the state level on a per pupil basis, and every public school has to accept the students zoned for that school, no matter if they do not speak English or if they have a disability, because every child is legally entitled to a free and public education. The students are counted at a point early in the school year, and schools receive funding based on that count. Students come and go throughout the year in the public schools, often leaving one school to enroll in another school in the district. If a student is expelled from a school, which is a very difficult process, the student will be enrolled in a different school within the district.

The point is, the money for each student stays in the local public system, even as students come and go in individual schools. As one student leaves a school, another student will show up to use the funding of the student who left. The problem with the voucher system is that the private schools can accept the student at the beginning of the year, receive the funding from the state for the student, and then expel the student arbitrarily for a minor infraction that violates the rules of the private school. The student will then be forced to return to the public school system, which did not receive the money for the student but will be expected to educate that student without funding. What is stopping the private schools from accepting students and then expelling them and keeping the voucher money? The money stays in the private school and will not benefit any other students and ultimately increases the per pupil funding of students in the private school and decreases the financial support of the student in the public school.

A second problem with using vouchers to fund private and home schools is the accountability of how that money is spent and the ROI of that money in the form of student progress. Private schools do not have to report how they use the funds they receive to educate their students because of the private funding of the institution. If students begin using public money to fund their private school educations, then the private schools should be required to report how they are using the public money, the same as how public schools are required to be transparent with their budgets.

In addition, student progress in private schools is not required to be reported to the state, whereas the public schools are required by law to assess and report the growth of their students on various standardized assessments. As a taxpayer, I want to know if the money my taxes provide to send a student to a private school is being used productively. The fact that my tax money is contributing to religious education is an issue that does not seem to matter to our state’s judicial system, but the fact that the money may be spent on ineffective educational programs is a problem. If public tax dollars are being spent on private educations, then those private institutions that accept state-funded vouchers are responsible for reporting the academic performance of those students who benefit from the public money.

Ultimately, there are many problems with implementing vouchers in the state of Nevada, and the loss of funding to public schools and lack of transparency and accountability required of private schools are only two. If the government is going to ram through the use of vouchers, then the schools that accept them need to be held to the same standards of educating all students and transparency and accountability that the public institutions are held to.

YES on ESAs: A private school environment is better for some

by Richard R. Becker
There are some people who have the misconception that the Education Savings Account (ESA) Program in Nevada will somehow only help wealthy families. This isn’t our experience.
We, like many families, make as many sacrifices as we can to send our children to the schools of our choice. We do it because all children are different. We know this to be true because our son attended public school for his entire career and it was mostly fine for him, but our daughter is different in that she performs her best in a different environment.
Knowing this, most of her education has been in a home school or private school environment. She is currently in fifth grade and was headed for Faith Lutheran Middle School & High School next year. However, the failure of our legislature to act in favor of ESAs last year has put this school out of reach.
You see, as children get older, education budgets don’t always keep pace with the cost of tuition. Funding ESAs now would have helped offset the growing gap between our education budget and the cost of tuition, ensuring our daughter could have continued on the path she has worked so hard to obtain.
We now have to scramble to find other education options for her. We are hoping to “win the lottery” and be accepted into a charter school or find an alternative private school within our very tight budget to attend for a few years until ESA funding is resolved. The process has created an air of uncertainty and anxiety around education for the first time in her life.
What troubles me the most about this, as someone who teaches educational outreach classes at the University of Nevada, Las Vegas, is that educational success is often dictated by the right environment for the student and developing their love for education, unhindered by negative emotions. As educators, we want students to both be challenged and challenge themselves while experiencing a sense of anticipation and excitement in their accomplishment. It’s how they all develop a love of learning.
For this reason, I am hoping you listen to the voices of parents all across our state who support ESAs. They know what is best for their children. Finding an alternative source of funding to make ESAs a reality is more than the right thing to do, it is a critical step toward improving the education system in our state and will also assist in freeing up educational funds and reducing class sizes at public schools.
ESAs are a win-win in that they will support a life-changing program that provides children the opportunities they deserve to succeed. And as they succeed, they will be better prepared and more likely to pursue degrees and contribute to our communities as tomorrow’s leaders, teachers, doctors, engineers, artists, and whatever else they might dream up.

NO on ESAs: Hire quality teachers and raise expectations instead

by Scott Van Winkle

As a former teacher in the Clark County School District and the parent of a child in a private, faith-based pre-school, I can see the school choice law from both sides. One thing the media has missed is that the law favors wealthy students, who would benefit from the Education Savings Accounts (ESAs) the law creates more than poorer students, and is therefore unfair. On the other hand, it would create opportunities for some poor students to escape public schools where expectations are low, and educational outcomes are often worse for individual students. I side with the public school advocates who see the law as a threat.

The teachers’ union and organizations that support public schools see the ESAs as a money grab for private schools, aimed at diverting funding from the public school system toward schools that tend to be run by churches or religious non-profits. This plan does create concerns about public funding of religious organizations, which the Nevada constitution specifically outlaws, and that argument is the nutshell of the legal argument against the law and the reason the court has rightly ruled against the law.

On the other side, private school advocates, faith-based groups, and some parents see the ESAs as a way to increase choice in education, particularly from disadvantaged groups or kids who otherwise wouldn’t be able to afford private school. The program would create competition for the public school system, even for parents who otherwise wouldn’t consider private school, because it allows parents to “opt out” of the system for their child, designating funds from tax money to subsidize their enrollment in private school.

The public school defenders see the issue as one of fairness to students who may not have the option or desire to attend private school, either because the schools are not in their neighborhoods or because they do not belong to a particular faith that would benefit from the ESAs. Diverting funds from the public school system to private schools is robbing the poor to feed the rich, they argue. The private school defenders describe the issue as one of fairness to students in poorer neighborhoods, where good teachers are harder to find, the facilities are older, and education in general faces greater obstacles, but in fact, more of the money would go to suburban schools than inner-city ones.

The problem comes down to low expectations for kids in poorer neighborhoods. The school choice law does not offer a viable solution to the problem it purports to solve. Raising expectations at low-performing schools has to happen, regardless of the student population. Whether individual students are better served by a transfer to private schools is not the issue. Individual students will be able to find a solution to a poor education if their parents are involved, advocate for higher standards, and find ways to teach their kids both inside and outside of school. The bigger issues facing public education today have to deal with perception, which becomes reality, that our public schools are failing.

CCSD has become a target because it is perceived as a giant bureaucracy, but the fact that it is the largest employer in Clark County does not mean that it is a one-size-fits-all organization. Every school has its own culture and organization, and teacher quality makes the biggest difference in the quality of education that every student receives. Focusing on teacher quality at the lower-performing schools is one solution. It isn’t possible even for good teachers to reach every kid, but it is possible to have high expectations and to help them learn — to go from where they are to where they can be — regardless of their economic situation. Attracting and retaining high quality teachers at low performing schools should be the goal, and we shouldn’t take resources away from those schools. Instead, we should incentivize teachers to teach long-term at lower-performing schools, not just with money but with recognition and respect.

The school choice law further erodes confidence in the system, as opposed to strengthening it. There is a lot of choice in CCSD right now, since kids can attend magnet schools or find a teacher or program that works for them. We need to change the perception that the system as a whole is failing, and this law is not the answer.

NO on ESAs: Nevada should learn from failed Indiana voucher program

by Heather Witt

Nevada ranks last in the nation in public education, according to Education Week’s 2017 Quality Counts Report. Fifty-first out of 50 states and the District of Columbia. Our public schools have been failing for a number of years now. So isn’t it time we provide students with the opportunity to escape these failing public institutions? Don’t our students deserve the ability to escape these failing schools and attend schools that will better serve their needs? How can we, as a state, provide parents with the opportunity to choose better schools for their children? School choice along with Education Savings Accounts seem a clear and appropriate answer.

But what if we’re asking the wrong question? What if, instead of asking how we can provide parents with the opportunity to choose better schools, we ask what we can do to support struggling public schools? Especially since it's generally the students in the worst performing schools who are unable to capitalize on voucher programs, as they often lack the transportation needed to get to those “better” schools, regardless of the cost of their tuition. Additionally, Nevada’s ESAs are not sufficient to cover the full tuition of many private schools and would likely only subsidize students families who’ve already made that choice.

The Washington Post recently reported on Indiana’s voucher program. After five years in implementation, with the requirement to first attend a public school swiftly lifted by the Indiana legislature, more than half of Indiana’s voucher recipients have never attended the state’s public schools and only 3% of new recipients in 2015 lived in the boundaries of F-rated public schools. The Post also reported on research that found Indianapolis students who used vouchers to transfer from public to private schools had no change in their language arts performance and had a decline in their math performance. Before seeking to fund a similar program in Nevada, taxpayers deserve a full and complete understanding of the impact on student achievement, on diversity in schools, and on the funding of our public schools.

This is my 6th year teaching in a Title I middle school, were a significant number of children qualify for free or reduced lunch. The last two years, I've fed my children breakfast in the classroom every morning. In addition to lacking sufficient food at home, many of my children lack sufficient financial, educational, and/or emotional support. They don't have books, they don't have Internet access, they don't have parents that are able to help them with their homework. They have siblings to care for, they have work to do, they have social and emotional problems that I couldn't imagine.

How about instead of giving parents a choice as to where to send their kids – which inevitably still leaves these kids behind –we instead provide them with the support they need from their public schools? How about we care more for our children? Provide them smaller class sizes so that teachers can build stronger supportive relationships. Make sure they have books at home. Provide them with the social and emotional support they need. How about we take the millions of dollars our state wants to invest in a state voucher program and fully fund our public schools? Why is that not an option?

Source:  Brown, Emily and McLaren, Mandy. How Indiana’s school voucher program soared, and what it says about education in the Trump era. Washington Post, 12/26/2016