Washington Ruling and Nevada’s School Voucher Cases

School Corridor Lockers No sooner do I post a piece on whether some forms of private education are prohibited by Nevada’s Constitution from receiving public funds than a ruling from the Washington Supreme Court strikes down funding for some charter schools in that state. [NewsTrib]

“In a 6-3 ruling issued late Friday afternoon, the high court said that the privately operated, publicly funded charter schools do not qualify as common schools under Washington’s Constitution and thus cannot receive public funding.” [NewsTrib]

Don’t be deceived by headlines declaring “court strikes down charter schools,” the ruling itself is far narrower.

“In the lead opinion, Chief Justice Barbara Madsen said the case wasn’t about the merits of charter schools, simply whether they were eligible for public funds. Citing state Supreme Court precedent from 1909, she said they are not eligible because they are not under the control of local voters. Washington charters are run by private nonprofit organizations that appoint their own boards. Most, including Tacoma’s charters, are also under the oversight of the appointed Washington State Charter School Commission.” [NewsTrib]  (emphasis added)

And, this was the point addressed in yesterday’s post.  The crux of the Washington matter was RCW 28A.150.010:

“Public schools means the common schools as referred to in Article IX of the state Constitution, including charter schools established under chapter 28A.710 RCW, and those schools and institutions of learning having a curriculum below the college or university level as now or may be established by law and maintained at public expense.”

And Washington, also, has a definition of a “common school.”

“Common schools” means schools maintained at public expense in each school district and carrying on a program from kindergarten through the twelfth grade or any part thereof including vocational educational courses otherwise permitted by law.

[1969 ex.s. c 223 § 28A.01.060. Prior: 1909 c 97 p 261 § 1, part; RRS § 4680, part; prior: 1897 c 118 § 64, part; 1890 p 371 § 44, part. Formerly RCW 28A.01.060, 28.58.190, part, 28.01.060.]

These provisions are similar to those in NRS 388.020.   We should pay particular attention to the portion of the Washington decision which clarified the definition of a Common School:

“…a common school, within the meaning of our constitution, is one that is common to all children of proper age and capacity, free, and subject to and under the control of the qualified voters of the school district. The complete control of the schools is a most important feature, for it carries with it the right of the voters, through their chosen agents, to select qualified teachers, with powers to discharge them if they are incompetent. “ [LWV v. Washington pdf]

The central point in the Washington decision is that because the charter schools are governed by non-elected boards and managers they are not within the scope of the Washington Constitution’s mandates on school funding.  The context is important because Article IX of the Washington Constitutions is explicit:

“The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.”

Nevada’s Constitution is not so explicit in its language. [NVConst Article XI]  This raises questions about the cases filed against the school voucher law (ESA’s) filed in Nevada.  (1) In order to be categorized as a “common school” must an entity be ‘common to all children of the proper age and capacity, free, subject to district control?’   Does the classification of a charter operation as a Local Educational Agency qualify a charter corporation to be a recipient of funds from the State?

(2) Can the state confer LEA status to a private corporation, given the standard definition of an LEA?

“The term “local educational agency” means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or of or for a combination of school districts or counties that is recognized in a State as an administrative agency for its public elementary schools or secondary schools.” [Cornell.Law.Edu]

The federal Department of Education defines a Local Educational Agency as:

“As defined in ESEA, a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for a combination of school districts or counties that is recognized in a State as an administrative agency for its public elementary schools or secondary schools.”

Both definitions of a Local Educational Agency emphasize that an LEA must be a governed by a PUBLIC board or PUBLIC authority.  So, it may follow that in order to be considered part of the uniform system of common schools, a local school or local educational agency must be governed by those who are elected by the public.  Where the Nevada Constitution may be a bit fuzzy on the subject (except for the contents of the Permanent School Fund), federal standards for the categorization of a Local Educational Agency are more specific.

Nevada’s work-around appears to be to have the State Public Charter School Authority (1) ostensibly is subordinate to the State Board of Education (with elected members), and (2) to have created a “school district” composed of all the charter schools. [BalPed]  However, the authority to approve charter school applications is given to the Nevada State Public Charter School Authority, in NRS 386.509.  

Now, the situation is removed a step from the voters.  The members of the NSPCSA are:  Two members appointed by the Governor, Two members appointed by the Majority Leader of the Senate, Two members appointed by the Speaker of the Assembly, and one member representing the Charter School Association of Nevada (or successor organization.)  [NRS 386.5095]   Not to put too fine a point to it, but the organization determining the membership of the 3rd largest school district in the state of Nevada is composed entirely of appointed members.   This doesn’t seem to conform to the standard, or the federal, definition of a Local Educational Agency.  The legislature has declared the charters to be an LEA, [NRS 385.513] however, saying so doesn’t necessarily make it a constitutional practice.  So, there’s the question: Has the State of Nevada erred in declaring its “charter district” an LEA given it is not governed by elected members?

Further Into The Weeds

Another question raised by the enactment of the ESA school voucher program is that of “delegated authority” that is,  the authority of a board to delegate its authority to some other entity.  Did the State err in deciding that a separate authority could approve or disapprove of charters to operate public schools in this state?

This question has been raised before, in regard to the State Board of Regents (University System), in January 1968.  At the time the state was considering the establishment of vo-tech schools in the state which would not be subject to the direct jurisdiction of the Board of Regents.  The Attorney General was asked for an official opinion, and the response was:

“In our present analysis, however, the lines of demarcation from secondary education to university level are clear. If college level courses are taught, the school is functioning on a university level and, if tax supported, should be established and controlled by the Board of Regents through the University facilities. The faculty should be hired and paid through the Board of Regents. The institution should be financed by legislative appropriation to the Board for that purpose.”

In short, if there were to be community colleges the legislature could not unilaterally pull them out of the domain of the elected representatives who govern public higher education.  We might argue, by inference, that if courses are taught, and a school is functioning, in the manner of a “common school” then it should be under the control of the local school district.  And, thus we return back to the question of whether or not the legislature erred in establishing a “district” without boundaries, and without direct public control?

Then there is the matter of assigning responsibility for public education funds, and there has been a question regarding this topic.  Dial the Way-Back Machine to 1961, and the consideration of who would be responsible for the handling of federal funds to local school districts.  Back in the day, there were questions about how funds for special educational services would be accounted for; the AG’s opinion was:

“Regulations prescribing conditions under which funds, commodities or services from federal agencies may be accepted for use by public schools”) designates and authorizes the State Board of Education to regulate the execution of all state contracts and agreements for funds, services, commodities or equipment which may be provided by agencies of the Federal Government. The State Plan submitted by the State Education Department to qualify the State of Nevada for the federal funds here involved provided for responsibility and accountability of the State Education Department, on the state level, for proper use and expenditure of any federal funds which might be made available and allocated to the State of Nevada.”

Short version:  The State Board of Education was responsible for the “proper use and expenditure” of all funding from the Federal Government, and could establish rules for the allocation of county school district funds, i.e. “all moneys received from the federal government and any other receipts, including gifts, for the operation and maintenance of the public schools in the county school district.”

Now we have a nice hash developing.   If we accept the proposition that all public school funding is subject to the jurisdiction of the State Board of Education, then how does one justify the administration of school funds by the Office of the state Treasurer?

“SB 302 provides a means for Nevada Parents with children enrolled in a public/charter school to choose a different option to meet their educational needs. A parent who wishes to choose something other than a public school simply can apply for an Education Savings Account and a percentage of what the state funds for their child’s public education will be deposited into an account for that child. The funds can then be used for education related expenses at approved participating entities. Nevada’s ESA program is being administered by the State Treasurer’s Office (STO), who ultimately will be responsible for establishing the regulations, timelines, and program processes.”

Again, if it is constitutional to state that the money received from all sources comes under the province of the State Board of Education how is it constitutionally justified that a portion of those funds may be diverted into individual accounts, administered by an agency other than the elected Board of Education?

The situation in terms of the administration and financing of charter schools in Nevada isn’t quite as black/white as the situation and legal context in Washington, but several pertinent questions are in order.

  • Can a local educational agency be one which does not have elected leadership?
  • Are schools designated as “common” but under the direct administration of those not elected by the public be part of a “uniform system?”
  • Can the state create an “artificial district” not subject to the direct control of elected officials?
  • Can state funds under the oversight of the elected State Board of Education be diverted, and the administration be delegated to, another state agency?
  • If federal funds for public education coming to the several district must be administered by the state Department of Education, then must districts establish fully separate accounts so that these funds may not be diverted and their administration delegated?

These and other questions could keep Nevada courts busy for months? Years? Decades?

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