Category Archives: Nevada legislature

Physicians Could Use A Bit Of Healing in Nevada: Opioid Prescription Problems

oxycontin  The Reno Gazette Journal has done a piece of highly recommended reporting – an in-depth account of opioid prescribing in Nevada.

“…a Reno Gazette-Journal analysis of DEA data showed that for certain drugs, Nevada ranks among the highest in the country.

Take oxycodone, Nevada’s most widely prescribed opioid. In 2012, nearly 1.04 million grams was distributed via retail in the state. That’s more than double what doctors prescribed in 2006. Nevada’s distribution rate is third highest in the country.

Nevada also ranks third for its hydrocodone distribution rate. In 2012, doctors prescribed more than 799,000 grams of hydrocodone — nearly three times the rate of New Jersey, which has triple Nevada’s population.”

OC pill There are some important points to take away from the article.  One of the first is that physicians, themselves, have opposed greater oversight of opioid distribution to patients, specifically in regard to SB 459.  One physician testified to the Assembly Committee on Health and Human Services that SB 459 sections 1-12 should be adopted, but the rest of the bill including reporting and medical education requirements should be dropped because it wouldn’t prevent overdoses. [AHHS pdf] Another doctor offering testimony “went there,” comparing the regulation of opioids to Nazi Germany:

“When people come to Las Vegas and need surgery or have chronic conditions and they hear that the climate here is like Nazi Germany in terms of regulations, the tightening of prescription pain medications, and the prosecution of doctors, it has a very chilling effect on these people who need those medications. […] there are folks who have chronic pain. I am an internist and I see this every single day. I sit there arguing with them about cutting their medications down and they start crying and throwing a fit because they need it.”  [AHHS pdf]

He continued:

We pull the DEA reports now and, as a private practitioner with a two- or three-man office, it creates a lot of extra work for my staff and more
documentation. It makes me pause every time I start to write a script for any controlled substance; I should not have to feel like that. At the end of the day, the doctor and the patient have the relationship, not the government in the middle. Doctors should be the ones who decide what is best for their patients. This bill has a chilling effect on that. [AHHS pdf]

The good news is that the language requiring that a doctor check the prescription drug monitoring database before writing a prescription for a narcotic to a new patient was retained in the bill.  However, the testimony presented should cause some alarm from members of the general public.

OC pill

As the article points out, a state with one third of the population of another probably shouldn’t be prescribing three times the amount of narcotic painkillers.

The argument that the state legislature shouldn’t try to do something to mitigate the problem if the proposal won’t fix the entire problem sounds altogether too analogous to the NRA’s arguments for doing absolutely nothing to prevent guns getting into the hands of felons, fugitives, and domestic batterers.  “If it doesn’t solve the whole problem, then it shouldn’t be done.”  The second piece of testimony is, itself, chilling.

Hyperbole rarely provides productive content in a civic discussion, and Godwin’s Law applies.  Bring up Hitler, and the audience moves along assuming the argument has been abandoned.  Secondly, it’s a bit more than disturbing that a licensed physician would be argued into prescribing medication he or she knows is deleterious or even dangerous for a given patient.

OC pill

No one wants the Hot Potato.  The state pharmacy board doesn’t want to use its database to flag doctors who are over-prescribing narcotics.  Their director: “Who’s to say what’s normal or what’s OK,” Pinson said. “It might be appropriate for a physician to be prescribing a ton of narcotics according to his specialty.” [RGJ]  It might be, and then again, it might very well not be. And the Board of Medical Examiners isn’t enthusiastic about clearing out their ranks either:

“It would be inappropriate, and it’s not the intent of the (prescription monitoring program), to find cases to investigate,” said Edward Cousineau, executive director of the Board of Medical Examiners, which licenses medical doctors and investigates malpractice complaints in the state.” [RGJ]

Again, we might ask: Why isn’t it appropriate to weed out physicians who are creating a situation in which Nevada is among the top five states for opioid pushing? Perhaps the next session of Nevada’s Assembled Wisdom will find the intestinal fortitude to (1) require that the Pharmacy Board use its drug monitoring database to look for BOTH doctor shopping patients and pill pushing physicians; and (2) more thoroughly investigate drug overdose deaths. 

OC pill

Kentucky, Tennessee, Texas, and Arizona have enacted such legislation. [RGJ] Nevada should join them.

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Filed under health, Health Care, nevada health, Nevada legislature, Pharmaceuticals, Politics, public health

Nevada Ballot Questions 2016: Number 1 Common Sense Gun Safety

Question One on the November 2016 ballot shouldn’t be there… that is, the issue should have been taken care of by the State Legislature.  It wasn’t, so here we are doing it the hard way. The initiative provides:

“The measure, upon voter approval, would require that an unlicensed person who wishes to sell or transfer a firearm to another person conduct the transfer through a licensed gun dealer who runs a background check. A licensed dealer may charge a “reasonable fee” for his or her service. If the measure is approved, those found to be in violation of the law would be charged with a “gross misdemeanor,” which could result in a $2,000 fine, up to one year in prison, or both, depending on the results of a trial by jury.

The measure exempts certain transfers of firearms from background checks, including transfers between immediate family members and temporary transfers while hunting or for immediate self-defense.

Supporters refer to the measure as The Background Check Initiative.As of 2014, firearms could be sold by individuals via advertisements and at gun shows without requiring purchasers to undergo background checks.” [Ballotpedia]

Ammosexual It didn’t take long for the NRA hysterics to go ballistic.  Look for the Code Words:

“This November, Nevadans will have the opportunity to vote down this unnecessary and unenforceable proposal which Governor Sandoval already vetoed in 2013.  Bloomberg’s NYC propaganda may say this is a gun safety measure, but we all know that this measure has nothing to do with safety or addressing crime and would only impact law-abiding Nevadans.  It’s important that Nevadans stand up for their rights and not let New York City money influence the future of Nevada!”

There they go again.  “Unnecessary and unenforceable,” is an interesting bit of sloganeering, which doesn’t come close to the rational .  We have laws on the books to criminalize robberies – but robberies still take place.  That doesn’t mean that our statutes on robbery are unnecessary because they are “unenforceable.”  And then there’s this:

“The exceptions are incredibly narrow and could turn an otherwise law-abiding person into a criminal, unknowingly.  For example, a firearm can be borrowed to shoot at an established shooting range; however, that same activity away from an established range such as BLM land is not authorized and would constitute an illegal transfer.” [NRA]

Reading comprehension is tricky but the opponents obviously didn’t get the part about “temporary transfers,” so if we’re out hunting and I hand you my gun, this doesn’t constitute a transfer in the legal sense of the initiative.  All this folderol is followed by the usual Faint of Heart Lament “the criminals will ignore it so we can’t do anything.”  Once more,  extrapolating this to its obvious conclusion would pretty much eliminate section 205 of the Nevada Revised Statutes – the ones defining criminal behavior.  We enact statutes like those attempting to curtail credit card fraud, identity theft, and burglary. Thus, we can enact a statute to curtail the unlawful transfers of dangerous firearms.

Straw Man The Straw Man Cometh.  The NRA and ammosexuals argue that the law would be unenforceable without registration, and registration is unconstitutional, un-American, un-holy or whatever.   So, they contend that this is a stalking horse for “gun registration” which leads to “gun confiscation” which leads to the “new world order,” and “tyranny.”

Excuse me while I take a breath.  There is no way to argue an irrational person into rationality.

The Anti-Urbanity Contingent arrives.   It is a “Bloomberg” idea, it comes from New York City. It’s evil?  It’s “New York Values?”  There’s a long and unhealthy anti-urban sentiment that goes back to the popular fiction of the 19th century.  This bit of pure propaganda would have us categorize other New York City inventions as indicative of New York Values, and the Evil City – for example: The Teddy Bear, Mr. Potato Head, Waldorf Salad, and Pizza?  [nyc]  Oh dear, those Teddy Bears might remind children of the story about President Theodore Roosevelt once refusing to shoot a bear because it was tied to a tree. [TRAssoc]

The origin of an idea is immaterial, and relevant only so far as it suggests (but doesn’t prove) some nefarious connections to the irrational fear of something or another.  Nevada statutes are clear about those the state doesn’t want to possess firearms:

Felons. Yes, there are some hysterics who do argue for the “right” of a felon to possess firearms. However, this fringe is fighting against a tide that’s been washing ashore since the 1920s.

Drug Addicts.  I am interested to hear from anyone who believes that a drug addict should be able to upgrade his capacity to steal to support his habit by moving up from burglary to armed robbery.

Fugitives. Again, does the NRA advocate that fugitives, especially those who have graduated to having their pictures up on police bulletin boards and post office displays, have a “right” to possess a firearm?

Adjudicated Mentally Ill.  It seems to me that the cry from the ammosexuals has been that most mass shootings in this country are accomplished by those few who are seriously mentally ill, and constitute a danger to themselves and to the public at large.  

Persons who are unlawfully or illegally in the United States.  I have met a couple of people whose pro-gun enthusiasm is exceeded only by their anti-immigration views.  I wonder if they want “aliens” with guns?

Now, here’s the question: How can we prevent the felons, the fugitives, the drug addicts, the adjudicated mentally ill, and the undocumented from obtaining firearms — IF we don’t adopt a universal system of background checks?  The anti-Question One crowd renders unenforceable the very statutes we rely upon to prevent the dangerous from obtaining the lethal.

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Filed under Gun Issues, Nevada legislature, Nevada politics, public health

Silver Bullets and Straw Man Arguments: Gun Legislation in Nevada (Updated)

OK Corral Here we go again.  Another spate of gun violence yields another editorial assault on common sense gun regulation from conservative sources, this time the editors of the Las Vegas Review Journal.  The title says it all, “Expanded gun background checks not a cure all.”  There are at least a couple of things wrong with this argument.  First, it’s a straw man argument. No one is claiming that universal background checks will cure the American violence problem.  The claim is that closing the gun-show loophole and requiring background checks for sales to non-family members will reduce the probability of gun violence.  Secondly, as the editorial itself acknowledges, background checks can prevent gun sales to domestic abusers.

Even this legislation, SB 175, didn’t really go far enough, and in some respects represents a step backward in terms of controlling access to firearms.  Those guilty of domestic violence, who are subject to an extended order of protection, are forbidden from purchasing or otherwise acquiring a firearm during the period the order of protection is in effect. To get this small attempt at controlling firearm access by domestic abusers, meant the NRA won state control of all gun related issues, county concealed carry permits in Clark County went by the wayside, and expanded language was added to liability in instances in which a “reasonable person might be afraid” for his or her life.

The second logical issue with the editorial is good old fashioned circular reasoning.  The authors logic appears to be that (1) effective background checks require efficient offender databases; (2) Nevada has an inefficient offender data base system; therefore (3) Nevada cannot have effective background checks.  This logic works IF one is prepared to skip blithely over the question of how to make the Nevada offender data base more efficient – and is perilously close to the old Undistributed Middle.

And then comes the perfectly predictable: “Regardless, as has been shown countless times, criminals are not going to follow any gun control law.”  So, if we extrapolate this to its obvious, and much referenced conclusion, there is no reason to enact sanctions against bank robbery and bear baiting because criminals are not going to follow the law?

Now back to the Domestic Violence issue.  What was gained by victims of domestic abuse in SB 175? Answer: Precious Little. [DB April 2015]  Under Section 5 of the bill a domestic abuser (the Adverse Party) was forbidden to purchase firearms for the duration of an extended order of protection.  Please recall that Nevada has two types of restraining orders, temporary and extended, and it can take up to 45 days to get an extended order. [NRS 33.031]   Meanwhile, the statistics are available for the period from April to June 2015. (pdf)

Between April and June 2015, there were 16,245 “contacts” made by authorities concerning domestic violence, and 10,637 were “first time,” another 3,537 were “repeats,” and there were 2,071 “follow up contacts.” Of the 10,637 victims 9,938 were women (93.4%), 699 were men (4.27%).  The age of the victim was not reported in 4,316 instances.  There were 1,479 female victims between the ages of 18-29; 2,577 female victims between the ages of 30-44; and, 1,193 female victims between the ages of 45-64.  Arrests were made in 1,490 cases, no arrest was made in 1,648 cases, and 135 cases are pending.  During the period between April and June 2015 there were 3,327 temporary orders of protection prepared.  2,402 temporary orders of protection/restraining orders were provided.

Assuming that law enforcement and the judicial system were functioning effectively, we had 2,402 cases in a three month period in which it was determined that the victim – most likely a woman – was deserving of a temporary order of protection.  However, the “adverse party” would be free to retain possession of firearms during the length of the temporary order, and for 45 days until an extended order of protection could be issued.

These numbers take on some urgency when put in the context of domestic violence in Nevada.  Back in 2012 25 of the 84 homicides within Las Vegas police jurisdiction were related to domestic violence, the numbers were worse in 2013 when 33 of 105 homicides were related to domestic disputes. [LVRJ]

More alarming still, the national report published by USA Today, on mass killings and family problems.  We have a “mass killing” about every two weeks (since 2006);  the FBI counted 172 between 2006 and 2011.  These numbers may be an undercount because of erroneous and excluded cases, leaving the FBI with a 57% accuracy rate.  And here comes the disturbing part:  Of those mass killings, in 53% the victims were family members. (Other 21%, Public 15%, Robbery/Burglary related 11%) A break up of some kind is the tipping point in 1 out of every 4 mass killings that aren’t connected to strangers, gang violence, or a robbery gone wrong. One in four victims were close family members, children, siblings, spouses, etc. In 77% of the mass killings the weapon used was a gun.  One-third of the victims were under the age of 18; and, 75% of the guns involved were handguns.

The USA Today report drilled down further: semi-automatic hand guns were involved in 49.6% of the shootings; handgun/revolver in 22.4%; and automatic pistols in 0.9%.  Single shot rifles were used in 9.5%; semi-automatic rifles in 8.6%; and automatic rifles in 0.4% of the cases. A shotgun was used in 8.6% of the deadly events.  One third of the perpetrators will be dead at the scene.

It’s certainly true, a domestic abuser will resort to whatever weapon may be at hand from guns to kitchen knives to baseball bats and to manual strangulation… however, as these statistics suggest the outcome is more likely to be deadly if a firearm is involved.

So, should the “little woman” be armed, does the gun in the home constitute an “equalizer?” The answer is no.

“A recent meta-analysis concluded what many people already knew: the availability of firearms is a strong risk factor for both homicide and suicide. But the study came to another conclusion that is rarely mentioned in the gun control debate: females are uniquely impacted by the availability of a firearm. Indeed, the study found that women with access to firearms become homicide victims at significantly higher rates than men.

It has long been recognized that higher rates of gun availability correlate with higher rates of female homicide. Women in the United States account for 84 percent of all female firearm victims in the developed world, even though they make up only a third of the developed world’s female population. And within American borders, women die at higher rates from suicide, homicide, and accidental firearm deaths in states where guns are more widely available This is true even after controlling for factors such as urbanization, alcohol use, education, poverty, and divorce rates.” [LATimes]

In another study, published in the American Journal of Public Health, researchers interviewed 417 women across 67 battered women’s shelters. Nearly a third of these women had lived in a household with a firearm. In two-thirds of the homes, their intimate partners had used the gun against them, usually threatening to kill (71.4 percent) them. A very small percentage of these women (7 percent) had used a gun successfully in self-defense, and primarily just to scare the attacking male partner away. Indeed, gun threats in the home against women by their intimate partners appear to be more common across the United States than self-defense uses of guns by women. [LATimes]

Another large case-control study compared women who were murdered by their intimate partner with a control group of battered women. Only 16 percent of the women who had been abused, but not murdered, had guns in their homes, whereas 51 percent of the murder victims did. In fact, not a single study to date has shown that the risk of any crime including burglary, robbery, home invasion, or spousal abuse against a female is decreased through gun ownership. Though there are examples of women using a gun to defend themselves, they are few and far between, and not statistically significant. [LATimes]

Thus much for the advocacy of yet more guns, and yet more permits to be able to conceal those guns?  And yet more reason to take note of the statistics on domestic violence, the presence of guns in unstable households, and the need to remove firearms from volatile domestic situations.

Questions Remain

  • When do the NRA talking points asserting there is no magic single solution to gun violence become stale and hackneyed?  When does the public come to understand that this is a straw man argument which does little good for the safety of the state and the families residing in this state?
  • When does the profoundly illogical argument that because something might be difficult, or even require more effort, that the desired outcome (less gun violence) is therefore impossible, become a clear example of circular reasoning and unfounded assertion?
  • When do we act on the statistics which strongly suggest that the presence of a firearm in a home increases the probability of lethal domestic violence and suicide? Not to mention tragic incidents involving children.
  • When do we take into consideration the fact that there are some 45 days under Nevada law during which a domestic abuser is free to retain firearms, indeed, free to obtain more “firepower” during that period?
  • What additional arguments must be made before those who advocate for zero restrictions on firearm ownership/possession understand that in a civilized society the temporary removal of firearms from a volatile domestic situation doesn’t mean there is a violation of a Constitutional right?

Update: The Violence Policy Center released its national report today. Nevada is 5th in the nation in female homicide rate.

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Filed under domestic abuse, Gun Issues, Nevada legislature, Nevada politics, Women's Issues

100 Days, ESAs and Sectarian Education in Nevada

Sectarianism There was this announcement from the State Treasurer’s Office this past August regarding the eligibility of homeschooled students to qualify for the school voucher (ESA).

“The Treasurer’s Office has been notified by the Nevada Department of Education that pursuant to NRS 388.850, a private school or “home school” student may not participate in a program of distance education (online class) to satisfy the 100 school day requirement. Nevada Revised Statute 388.850 prevents a private school or “home school” student from enrolling in a program of distance education (online class). However, a private school or “home school” student may qualify for an ESA by taking one or more classes in a public or charter school, pursuant to NRS 386.580(5) and 392.070(3).” [NPRI]

Thus, a child can be enrolled in a public or state chartered school for 100 days, then be eligible for a voucher to pay for homeschooling curricula.  And, here we run into some problems – or, perhaps one big problem. Sectarian classroom materials.

Sectarianism is mentioned seven times in the Nevada Constitution. The first reference comes in Article II, and the fundamentals are clear as a bell.   “The legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year, and any school district which shall allow instruction of a sectarian character therein may be deprived of its proportion of the interest of the public school fund during such neglect or infraction, and the legislature may pass such laws as will tend to secure a general attendance of the children in each school district upon said public schools.”

[Amended in 1938. Proposed and passed by the 1935 legislature; agreed to and passed by the 1937 legislature; and approved and ratified by the people at the 1938 general election. See: Statutes of Nevada 1935, p. 440; Statutes of Nevada 1937, p. 550.]

In  Section 9:  “Sectarian instruction prohibited in common schools and university.  No sectarian instruction shall be imparted or tolerated in any school or University that may be established under this Constitution.”

And Section 10: “No public money to be used for sectarian purposes.  No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.”

Home Sweet Home

In the home-school proponent perspective, a child who enrolls in 100 days of online (homeschool/distance) education should be eligible for ESA grants.  However, what distance learning or home-school curricula matters.  Thus, we’d have to ask if an ESA grant may be used to pay for sectarian home-school curricula and support materials?   If we look to Article II, sections 9 and 10, the answer appears to be a resounding NO.

The parent of a  child who is to be home-schooled must submit an “educational plan” for the child in order to be exempt from state mandatory attendance laws.  And:

“No regulation or policy of the State Board, any school district or any other governmental entity may infringe upon the right of a parent to educate his child based on religious preference unless it is:

  1. Essential to further a compelling governmental interest; and
  2. The least restrictive means of furthering that compelling governmental interest.” [NHSN]

Okay, a parent may choose to home-school a child, using a religious curriculum, without discrimination.  The question becomes: Can the state funds be used to pay for it?

So far the parent may choose any curriculum – the district cannot discriminate based on religious affiliation – and who pays for the Stuff?

Stuff from Abeka K-12? Their 8th grade science book explains:

“From earthquakes and volcanoes to clouds and galaxies, show your child the features of God’s Creation here on earth as well as the Great Beyond with Science: Earth and Space! This textbook guides your child through a study of geology, oceanography, meteorology, astronomy, and environmental science. A thorough study of rocks, soil, and fossils will give your child ample proofs that this earth was created by God and not evolutionary processes.”

In brief, the last time I looked such an explanation was described as “creationism,” and “creationism” isn’t science, it’s theology.  Perhaps some materials from Bob Jones University Press?  Right off the bat the website tells us, “We want students to think, so we use inductive teaching, discovery activities, and probing discussion questions to develop thinking skills.”   Let’s step back a moment, there’s inductive and deductive reasoning; and, inductive reasoning makes broad generalizations from specific observations.  By contrast deductive reasoning, the basis for most science, proposes an hypothesis and then tests observations. [LiveSci] Inductive reasoning is used in the crafting of theories and hypotheses, after which deductive reasoning is appropriate for testing those theories.  So, if we’re going to start and stop with inductive instruction we won’t get to the part where the evidence is truly tested?  However, there’s more, as the Bob Jones University curriculum describes its Biblically based instructional mission:

“The Bible teaches that in the Fall, human cognition and affection became broken. Verses like Jeremiah 17:9 and I Corinthians 2:14 teach that the fallen human mind cannot understand the world the way it was meant to be understood. Proverbs 1:7 teaches that “The fear of the Lord is the beginning of knowledge.” Here we learn that proper affection (“fear”) for God is the key to proper cognition (“knowledge”) regarding His world.”  […]

Good biblical integration has not happened until the student learns how the Bible is relevant to the subject at hand. This involves three levels of effort.

“In Level 1 biblical integration, the Bible is referenced while the subject is being taught, using biblical analogies or examples. In Level 2, the teacher shows the student how the Bible should guide him as he applies the academic discipline to real-life situations. The final level focuses on rebuilding the academics for the glory of God. Remembering the fallenness of the human mind, the teacher should call into question the secular assumptions of each subject and then encourage the student to rebuild the discipline from biblical presuppositions. The work of Christian education is the work of redeeming what has fallen.  We study all aspects of human culture because we see in that study the potential for redemption. As we view the academics through the lens of Scripture, we learn how we may be used to redeem those disciplines back to God.” [BJUpress]

If this isn’t sectarian, then I’m really not sure what would be.  To cut this bit short before it becomes a litany of examples of sectarian based instruction readily available from all manner of sources, and ranging widely in terms of quality, it’s fair to ask if a home-schooling parent should be remunerated for materials and supplies which teach creationism and centralize “redemption” as a focus of instruction?

Of course, there’s the other side of the issue – there are other religions which provide instructional materials – the Islamic Bookstore devotes a page to materials geared for young people, from pre-school to grade six.  One quick Google and you can find support groups for humanist and atheist home-schooling parents.  Seriously pagan or Wiccan? There’s a page for that too.

Meanwhile back at the Establishment Clause

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…”

Somewhat lost in all the recent rhetoric about “religious Freedom,” are the two pieces related to “religious liberty” incorporated in the First Amendment. Fundamental to understanding the first part, or the Establishment Clause, is the nature of the word “respecting:”

“The first of the First Amendment’s two religion clauses reads: “Congress shall make no law respecting an establishment of religion … .” Note that the clause is absolute. It allows no law. It is also noteworthy that the clause forbids more than the establishment of religion by the government. It forbids even laws respecting an establishment of religion. The establishment clause sets up a line of demarcation between the functions and operations of the institutions of religion and government in our society. It does so because the framers of the First Amendment recognized that when the roles of the government and religion are intertwined, the result too often has been bloodshed or oppression.”  [1st AmdCent]

Witness: the wars associated with the Reformation – the German Peasants’ War (1524-1525); the battle of Kappel (Switzerland 1531); the Schmalkaldic War (Holy Roman Empire 1546-1547); and then we move on to the Eighty Years War in the Low Countries (1568-1648), the French Wars of Religion (1562-1598) and the Thirty Years War (Holy Roman Empire, Austria, Bohemia, France, Denmark, Sweden (1618-1648).    Not that the British Isles escaped the religiously based slaughter – there was the Scottish Reformation and attendant civil wars; and, the wars probably best recalled by the founders of this nation – the English Civil War (1642-1651).  The carnage is difficult to assess for the English Civil Wars – historical records count 84,830 dead as a result of the conflicts, other estimates range as high as 190,000 dead out of a total population of about 5 million people.

One doesn’t have to go too far back to be reminded of the effects of sectarianism in Northern Ireland, or do much more than turn on a television news broadcast of the latest atrocities perpetrated by Sunnis on Shias or Shias on Sunnis.

Little wonder the founders inserted the Establishment Clause.  And the State of Nevada acquiesced to this in Article I:

“All political power is inherent in the people[.] Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair[,] subvert, or resist the Supreme Authority of the government of the United States.” (emphasis added)

Loud rhetoric, and even imprecations, from the radical religious right don’t change the overall framework – we do have an Establishment Clause, it was enacted with a mind to historical precedent and human nature, and the state of Nevada adopted it in its own Constitution.

What Does This Mean At the Bookstore?

According to the provisions of SB 302, money from the ESA may be spent to pay for:

Textbooks required for a child that who enrolls in a school that is a participating entity; … Textbooks required for the child at an eligible institution that is a participating entity or to receive instruction  from any other participating entity; … Purchasing a curriculum or any supplemental materials required to administer the curriculum.

A science text book that teaches “Creationism?” A “Biblically-Centered” curriculum?  Supplemental materials which amplify and explain doctrines such as: “When a child is born it is a cause for much happiness and celebration.  In Islam there is no preference for either a male or female child.  Quran says that both the male and the female were created from a single person (Adam) and that are equal except in terms of piety and righteousness.” [IslRel] And, that the Prophet categorically stated female children are a blessing and that raising them to be righteous believers is a source of great reward.  [IslRel]  Materials for Torah study?  Have we missed the Hindi? The Sikhs? The Jains? The Buddhists? The spirituality of Native Americans? …

If the state allows remuneration for the purchase of some sectarian materials and curricula then it must do it for all?  In light of the Establishment Clause, the question is reversed – Is there any condition in which the state is allowed to subsidize sectarian education? And, the answer is … NO.

To say that the state may not discriminate against those whose educational plans are religiously based is one thing, to say that the state must pay for the materials to implement religiously based education is quite another. It’s certainly going to take more than 100 days to get this mess sorted.

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Filed under education, nevada education, Nevada legislature, Nevada politics, religion, schools

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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And then there were two: 2nd Lawsuit filed against Nevada’s school voucher law

School Corridor Lockers There are now two lawsuits filed against the “Education Savings Account” law enacted by the last session of Nevada’s Assembled Wisdom.  The first came late last month from the ACLU, and now a second comes from parents who are disturbed that the law takes revenue collected for public education and diverts it to private and religious schools.

“The lawsuit filed Wednesday claims ESAs violate the state constitution by diverting funds “exclusively” meant for public schools to private schools and other private expenses. It also argues the ESA bill undercuts funding for public schools to a less-than-sufficient level and does not mandate private schools to follow the same non-discrimination and accountability rules that state law requires of public schools.

The lawsuit includes a request for a judge to permanently block the Nevada treasurer’s office from implementing the ESA program, according to a news release.”  [LVRJ]

The notion that private is always better than public seems to undergird the assumptions of the proponents of public support for private education.  There are several streams that converge into this ideological river, some stronger than others.  Some relevant to the issues at hand, and others less so. The arguments are worth exploring.

Diversion

Proponents of the measure argue that since it’s the parents who make the funding request from the State Treasurer’s office, they have every right to make the diversion.  There’s a slippery slope question herein: Does an individual have the right to request the diversion of public funds for the benefit of a private enterprise?

For the sake of the general argument, let’s assume that we are not talking about schools in particular, but any state or local function.  A hypothetical might be illustrative, if not analogously probative – there is a reservoir stocked with fish by the Nevada Department of Wildlife, subsidized from about $231 million is expended in total on “fisheries management.” [NDW pdf] The sale of Trout Stamps brings in about $650,000 annually. [NDW pdf]  Approximately 1% of Nevada’s Department of Wildlife budget comes from the General Fund, and 2% from other state sources.  86% of the budget comes from wildlife fees and grants. Those fees include fishing licenses. A fishing license costs $13, and the Trout Stamp adds another $10 to the total.   Now, imagine an enterprise in close proximity to our hypothetical reservoir which charges admissions and fees to fish in the waters of its reservoir; no state license or special stamps required.

May a individual who doesn’t want to fish in public waters get $23 returned to a “fishing savings account” because he or she doesn’t want to fish in the public reservoir, and prefers to engage in that recreational activity on private lands, under private control?  Taxes and fees are combined to form the revenue base of the Department of Wildlife, so what is the justification for diverting funds from the Department of Wildlife back to those who do not wish to utilize its services?

We might apply the same analogy to other services like local libraries?  If a subscription library were to be established could local residents request a voucher for funds to subsidize their fees to the subscription library?  Could local residents request vouchers to reduce the burden for their payments to use private parks and pools?  May a local resident demand a voucher from a county government which collects property taxes, a portion of which are allocated to the operation of a hospital, if the resident chooses not to use the services of that local hospital?  Might a resident who pays for private security request a voucher for a “protection savings account” to subsidize his or her fees to the private security firm from taxes collected to finance the local law enforcement agencies?

There’s a tricky precedent here in the form of the “individual choice” argument.  The implications go far beyond the funding of private or parochial education, and range from the relatively minor (such as our fishing example) to the more serious (such as the public subsidies for public health or public safety services.)  Extrapolating this precedent could yield a chaotic system in which each individual is only obligated to pay for the “things” he or she personally wants. 

The Grass Is Greener

The “School Choice” argument has been framed as one of allowing parents to choose between the public and private system, with the private or charter schools held to be superior.  This argument branches out into several other strands.  In strand one, the question arises: Should public funds be used for the inculcation of religious ideals and dogma?

Article II of the Nevada Constitution is clear on this subject. “The legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year, and any school district which shall allow instruction of a sectarian character therein may be deprived of its proportion of the interest of the public school fund during such neglect or infraction, and the legislature may pass such laws as will tend to secure a general attendance of the children in each school district upon said public schools.”  Art II, Section 2 (emphasis added)

Sections 9 and 10 are equally exclusive: “No sectarian instruction shall be imparted or tolerated in any school or University that may be established under this Constitution.” And, “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.”

When the topic comes up three times in one brief segment of the State Constitution, we have to believe that those who crafted the document were serious about the subject.   So, when Bishop Gorman High School schedules Mass during the school day, would this violate the funding proscriptions in Article II of the State Constitution?  The answer seems clear in Section Ten. NO public funds of any kind or character whatever….”  Would this proscription also apply to the Southern Baptist Academy (K-12) online home schooling curricula?  Most likely.

Strand Two assumes parents want to make the best choices for their children, while the state has an obligation to create a “uniform system of common schools.” And at this point the categorization gets complicated.  There are parochial schools which are required to accept the children of any member of the parish.  There are also parochial schools, such as Bishop Manogue in Reno, NV which offer applications including recommendations from at least two teachers (math and English), and high school placement test results.  We should probably guess that those scoring higher will swim faster in the decision pools.  The Meadows is a non-sectarian school in Las Vegas, and its exclusivity is emphasized by the $15,500 to $24,025 tuition fees.  Neither exclusive (as opposed to totally inclusive) schools such as Bishop Manogue or The Meadows quite constitutes a “common” (as in totally inclusive) school.  Now, does a voucher – in the form of an ESA – violate the provisions of the State Constitution that revenue collected for educational purposes be used for schools which are not part of a “uniform system of common schools ” and really don’t intend to be?

Strand Three raises other categorical questions, such as when are other educational alternatives to be considered part of a “uniform system of common schools?”   For example, there are three forms of charter schools in Nevada depending on their sponsorship: District, University/College, and those approved by the State Public Charter School Authority.  The latter category gets us into some Alphabet Soup.  A private charter hires an ESP (Educational Service Provider) to handle day to day operations, and this management comes in two forms, the CMO and the EMO.  (Charter Management Organization, and Educational Management Organization) The EMO’s are more often those corporations which can afford to purchase school facilities.  Once the Alphabet Soup is sorted, it’s easier to examine the program management to see if it fits the template of a school’s definition of an institution fitting into a framework of “a uniform system of common schools.”

The extensive provisions of NRS 386 on Charter Schools should give some assurance of public accountability. There is an annual report from the Sponsor  NRS 386.610: For each charter school that it sponsors with a written charter, an evaluation of the progress of each such charter school in achieving the educational goals and objectives of the written charter. And, For each charter school that it sponsors with a charter contract, a summary evaluating the academic, financial and organizational performance of the charter school, as measured by the performance indicators, measures and metrics set forth in the performance framework for the charter school.  Three consecutive years of underperformance and determined by the CMO/EMO evaluation standards, and they’re out.

Not surprisingly, most of the Nevada charter schools are located in the Las Vegas suburban area.  Nor is it any great surprise that the ethnicity of 61.61% of the state charters is White, as compared to 35.98% statewide, and while the composition of public schools is about 40.56% Hispanic, the state charters enroll only 16.11% of that student population subset. [NVReport Card]  Surely, schools part of a “uniform system of common schools” would have enrollment statistics which better mirror those of the public schools? 

Thus, the question: If a school, while adhering to the testing regime of the State, isn’t representative of the enrollment of the “common schools” using even the most broad statewide description, does it qualify for public funding for its operations?  And, may a school, with the permission of the state, expend public funds if it fails to offer the same programs for special students as are required in the public schools?  In other words, do we have one system of common schools or two?

Who’s Choosing?

Heaven forbid I’m bashing private schooling – I’m one of its products.  However, I am also one who believes that private schooling is a choice, a choice made by parents who don’t want to avail themselves of the choice to send the kids to the public school.  Taxes are paid into state and local coffers for the maintenance of “a uniform system of common schools,” so that every other youngster in town who isn’t a parish member or having the luck to be born to parents who can afford private education,  isn’t denied  schooling.   The passage of the ESA legislation simply means I don’t have the choice NOT to pay for someone else’s choice to attend a private school.

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A Labor Day Warning: Make Up Artists and the erosion of consumer protection

Certified Seal A bill, AB 409 passed the Nevada Legislature last term, which illustrates the way opponents of consumer protection and professional licensure are moving to erode those public protections.  Superficially, the bill sponsored by Assembly members Seaman, Shelton, and Fiore, removed the requirement for make up artists to complete a nationally recognized written examination for work in a licensed cosmetological establishment.  Sounds simple enough, what could go wrong?  Oh, how about inflammatory dermatitis, folliculitis, and hives? [MedNet]  Or, inducement of an immune-mediated allergic response? [MedNet]

And, then there was another “simple” bill, SB 68.  Ostensibly, the bill would make it easier to recruit health care professionals to the state by creating an expedited licensing process.  Amendment 65 (adopted) included those subject to the Board of Medical Examiners, State Board of Nursing, State Board of Osteopathic Medicine, State Board of Podiatry, State Board of Examiners for Audiology and Speech Pathology, State Board of Pharmacy, State Board of Physical Therapy Examiners, the Board of Occupational Therapy, the Board of Massage Therapists, the Board of Psychological Examiners, the Board of Examiners for Marriage and Family Therapists, and Clinical Professional Counselors, the Board of Examiners for Social Workers, and the Board of Examiners for Alcohol, Drug, and Gambling Counselors.  The following item specifying nursing applicants stands as illustrative of the others:

“3. Not later than 15 business days after receiving an application for a license by endorsement to practice as a professional nurse pursuant to this section, the Board shall provide written notice to the applicant of any additional information required by the Board to consider the application. Unless the Board denies the application for good cause, the Board shall approve the application and issue a license by endorsement to practice as a professional nurse to the applicant not later than: (a) Forty-five days after receiving the application; or (b) Ten days after the Board receives a report on the applicant’s background based on the submission of the applicant’s fingerprints,  whichever occurs later.

The other fine print in the bill as enacted is the change from a board which “may” issue the expedited license to the requisite “shall” issue such a license to practice. (See Sect. 8) Thus the appropriate board “shall” issue an license within 45 days; 45 days during which the board must determine the applicant is a citizen of the U.S., has not been disciplined and is currently not under investigation (for malpractice?), has not been civilly or criminally held liable for malpractice, submits finger prints, professes in an affidavit that everything in the application is true.  The corresponding board has 15 days to review the application before telling the applicant more information is needed, and another 30 to make a decision.

Expediting licensure, especially to fill vacancies in rural areas and in specialties which are understaffed, is a valid rationale for this legislation. However, what happens when the licensure requirements are less in another state than in Nevada?  For example, Nevada requires a college degree for drug, alcohol, and gambling addiction counselors – California does not. [SB 68 testimony]

The resolution to this is asserted to be “interstate reciprocity” agreements, including some 20 states including Nevada which have or supposedly will have legislation in place in the near future.  This is the intent of SB 251, which ratifies the “Interstate Medical Licensure Compact.” (Introduced by: Hardy, Roberson, Brower, Farley, Harris, Oscarson, R. Titus, and co-sponsored by Ford, Goicoechea, and Gustavson.  Thus far the members of the Compact are: Nevada, Utah, Idaho, Wyoming, Montana, South Dakota, Minnesota, Iowa, Illinois, Alabama, and West Virginia. [LicensePort]  Frankly, this is a far cry from the universal portability of a medical license the original proponents imagined?

For those keeping score, Nevada now may exempt make-up artists from cosmetology examinations, and may issue expedited licenses to counselors and certain other health care service providers  who may have lesser academic credentials from other states but have active (and presumably unblemished) licenses to practice in another state.

Portability is a fine idea in theory in this interconnected modern environment, and given the mobility of the populace, probably a positive thing, provided – that the licensure (expedited or not) doesn’t impinge on standards already established for the protection of clients and customers.  Also, given the scramble to recruit certified individuals to fill health care positions – and the expansion of the definition of health care providers [SB 84]  – it behooves Nevada consumers to keep an eye on the Nevada Medical Practices Act (NRS 630) and other statutes which concern the licensure and reciprocity of professional providers – of all manner of services in which there is the possibility of injury to Nevada patients, clients, and customers.

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