Ralston Reports: School-choice backers twisting law's language

The Republicans won the battle over school choice this year in the Legislature.

But in the aftermath, by placing their ideology over the law and by allowing hubris to trump common sense, they stand to lose the war.

The issue itself is highly emotional and legally complex, as I have previously written in this space. A couple of lawsuits are pending, dismissed by school choice advocates as an effort to deprive children of their right to the best education.

They argue the merits of the policy, not pesky constitutional questions.

Fine.

But what is not copacetic is repeating a time-honored Nevada sin: Using the regulatory process to twist, skew or even subvert the clear wording or manifest intent of a law.

The shadow lawmakers on regulatory bodies, often unelected and heavily lobbied, often undermine or redirect what the Gang of 63 has wrought, with the most striking example being when major gaming companies persuaded the Tax Commission to change how tax credits were awarded in a green-building law a decade ago, costing the state millions.

Now, led by a constitutional officer and school choice backers in the Legislature, they are at it again. This time elected officials are disregarding what the law plainly says to write regulations to make up for poor drafting and fiscal considerations during the session.

This has nothing to do with the concept of school choice, and I have no patience for Democrats – who made countless promises over the years – now mewling over its enactment. Democratic lawmakers, trying to latch onto an election strategy to change Carson City control, still have not come to terms with the fact that a GOP-controlled Legislature passed the most sweeping education funding and reform package in history.

But their legislative victory does not give school choice advocates license to use the regulatory process to make the program, the country’s broadest, more expansive than it already is. And that is exactly what they are doing. To wit:

During the session, to avoid a $200 million immediate hit to the budget (seems ludicrous now considering the $1.5 billion tax increase), lawmakers advocating for school choice jerry-rigged a proviso: Those kids in private institutions who wanted to become eligible for the $5,000 Education Savings Account had to spend 100 days in a public school. There were no exceptions: “for not less than 100 school days without interruption.”

But ESA Czar Dan Schwartz, who moonlights as the state treasurer, has decided he can exempt military families and kids 5 to 7 years old from the requirement. And the Legislative Commission, chaired by state Senate Majority Leader Michael Roberson, seems poised to rubber-stamp Schwartz’s extralegislative lawmaking.

Two weeks ago, legislative attorneys informed Schwartz that the proposed regulations do not comport with the law. But you don’t need to have a J.D. to figure that out.

Nothing in the law allows Schwartz or the Legislative Commission to exempt military families, even though it is politically popular and Gov. Brian Sandoval immediately signed on. Schwartz cited an interstate compact allowing special dispensation for military families, but this would seem to be a stretch to apply it here. Why shouldn’t military families be exempt from property taxes and sales taxes, too, while we are at it?

The exemption for 5- to 7-year-olds is even more tenuous, as the Legislative Counsel Bureau pointed out. The school choice law says any child “required” by statute to be in classes must be eligible for an ESA. State laws says “any child between the ages of 7 and 18 years” must attend school.

So kids 5 to 7 clearly are not in that cohort and do not qualify. This is not rocket science; it’s not even first-year law.

A Schwartz spokesman told me, “Senator (Scott) Hammond, the author of the bill, has stressed that the Legislature believed these children ages 5 to 7 did not have to meet the 100 day requirement. This amendment is merely to clarify these related parts of the law that were not fully taken into consideration.”

Oh? So Hammond has the final say now? Really? This claim would need a quadruple shot of caffeine to be upgraded to weak tea.

But Roberson, Schwartz and other school choice advocates appear undaunted. The treasurer wrote to LCB last week explaining his “reasoning.” And Roberson addressed the controversy on Twitter with a pair of tweets last week:

“As Chair of Legislative Commission, I believe the regs are consistent with intent of law.”

And, tellingly: “The Leg Commission or Subcommittee to Review Regs will determine if regs are consistent with intent of statute.”

This is almost Nixonian: If the Legislature says something is legal, it is legal.

Of course, that is nonsense, as courts can review regulations and have struck some down in the past, including on the minimum wage. The law clearly gives judges the jurisdiction to determine the validity of regulations: “The court shall declare the regulation invalid if it finds that it violates constitutional or statutory provisions or exceeds the statutory authority of the agency.”

Imagine if that were not true. Regulations could be written with impunity that create exceptions and exemptions out of whole cloth. That occurs occasionally now, but it’s so sub rosa, they are rarely even noticed except by those who stand to benefit and hire the best lobbyists.

The question is whether anyone will challenge these regulations if they are enacted, which might be politically risky, or simply wait to see if the overall school choice law is upheld, probably next year. Judging by how courageous the Democrats have been so far, I won’t hold my breath.

A lot is at stake here politically. Roberson, who is running for Congress, has been pushing the school choice law on social media, presumably as a prophylactic for his shepherding the tax increase through the Senate. Schwartz may have higher ambitions, and this issue has a lot of resonance in the GOP base. Others see the utility, too, including Attorney General Adam Laxalt, who has eagerly taken on defending the law and even pushed for the hiring of an expensive outside superlawyer.

But in the process, the debate over the law's merits has been obscured by politicians putting their own beliefs or desires over the rule of law. Even if you support school choice, that ought to disturb you.​

Jon Ralston has been covering Nevada politics for more than a quarter-century. See his blog at ralstonreports.com and watch "Ralston Live" at 5:30 p.m. weekdays on KNPB.