Independent Homeschooling vs. Public-funded “School Choice”
From our friends in Oklahoma:
TRUTH #1 – The Nevada ESA… exists in name only!
Some national and state organizations to this day claim the NV-ESA “a success” but truthfully that is a false statement since the program has never been operational. Originally passed in 2015 but never funded due to lawsuits against the program, the NV-ESA created deep concerns for homeschool and private school freedom.
- 2015 Lawsuits Against the ESA: The NV Supreme Court issued their decision on the combined lawsuits September 29, 2016. While the Court found that it is within the Legislature’s constitutional discretion to establish Education Savings Accounts under their duty to “encourage other methods of education,” they MAY NOT use funding allocated to the Distributive School Account (for public schools) to fund the NV-ESA.*
- 2017 Funding Debacle: Consequently, in 2017 Governor Sandoval requested a separate funding stream for the NV-ESA through the state’s General Fund.
- And as feared, the 2017 NV legislative session showed that accepting taxpayer money WILL increase regulation of the education being provided to the child in a private school or a “home based” program depending on who controls the Legislature, Democrat Conceptual Amendment to Sb506, the ESA funding bill.
- Details on what happened found here: 2017 Legislative Wrap-up: SB 506.
* “For the reasons set forth in this opinion, we conclude that Article 11, Section 1 does not limit the Legislature’s discretion to encourage other methods of education. Based on that reasoning, the ESA program is not contrary to the Legislature’s duty under Article 11, Section 2 to provide for a uniform system of common schools. We also conclude that funds placed in education savings accounts under SB 302 belong to the parents and are not “public funds” subject to Article 11, Section 10.”
“The issue remaining relates to the funding of the education savings accounts. Based on the State Treasurer’s concession that SB 302 does not operate as an appropriation bill, and that nothing in the legislative measure creating the State Distributive School Account funding for public education provides an appropriation for education savings accounts, we must conclude that the use of money that the Legislature appropriated for K-12 public education to instead fund education savings accounts undermines the constitutional mandates under Sections 2 and 6 to fund public education. Accordingly, we affirm in part and reverse in part the district court orders in both cases, and we remand each case for the entry of a final declaratory judgment and a permanent injunction enjoining the use of any money appropriated for K-12 public education in the State Distributive School Account to instead fund the education savings accounts. “
Nevada Supreme Court (2017, September 29) Schwartz v. Lopez. Retrieved July, 2017 from https://law.justia.com/cases/nevada/supreme-court/2016/70648.html
- We must understand and proclaim the Biblical truth; ALL parents are ultimately responsible for the education of their own children, not the state.
- When private schools/parents accept “taxpayer funding” the government sets up “accountability” measures that will limit their Liberty, that may be “choice” but it is NOT freedom.
- Independent, self-funded homeschool parents and advocates as well as private schools must stay engaged in the debate over “government funded school choice” and its impact on our Education Liberty from the state.
Education Liberty, or Ed Liberty for short, must be preserved.
TRUTH #2 – The NV Choice Scholarship has been regulated beyond intent of legislation passed in 2015.
The NV Choice Scholarship championed by Governor Brian Sandoval is a business tax-credit scholarship program for low-income students to attend private schools. In our opinion the program the program has been regulated by the NV-State Board of Education (SBOE), NV-Department of Education (DOE), and Legislative Counsel Bureau (LCB) beyond the intent of the original bill. After the bill passed in June of 2015, the SBOE moved in October 2015 to over-regulate the program by requiring all Choice Scholars to be tested annually with a state approved test by the private school who must in turn submit the student’s test scores to the DOE.
For freedom loving parents the PROOF is in the pudding – government funded school choice advocates claim there will be “minimal” accountability for private schools or parents accepting tax-payer funding but in the end non-elected bureaucrats always find a way to add burdensome regulations NOT authorized in the law.
- This Associated Press article published 11/20/2017 discussed a regulation, NAC 385.606, passed in October 2015 by the NV State Board of Education, requiring private schools to test NV Choice Scholarship pupils enrolled in their school with an annual “state approved” norm-referenced assessment and submit the scores of individuals to the Dept. of Education.
- However, in a review of hearings on the bill AB 165 establishing the tax-credit scholarship program (not the NV-ESA) to help children from low-income families to attend private schools during the 2015 Legislative session, it is clearly recorded there would be no state approved annual testing requirement on these children as a form a “accountability” to the state.
- In fact, then Superintendent of Public Instruction, Dale Erquiaga, clearly stated for the record that an “annual test” would not be required for Choice Scholarship students and specifically said on 4/2/15 before the Senate Committee on Revenue and Economic Development:
- “I understand your question and direct you to section 5, subsection 5 of A.B. 165, located on page 5, which requires the Department of Education to adopt a reporting mechanism through regulation to keep track of the academic progress taken together, not pupil by pupil. Private schools that accept scholarship students shall be required to report the academic progress of these students to the Department in order to compare progress between private and public schools. This would preclude the Department from imposing State standards or State testing on private schools. However, the Department could develop a mechanism to keep track of academic standards.” [Emphasis added]
But obviously the NV Department of Education and the NV State Board of Education, via their accomplices at the Legislative Counsel Bureau, have decided they are authorized to not only mandate that private schools use an annual norm-referenced assessment test to determine academic progress of a Choice Scholar recipient, the state must also “approve” the test used, and the private school must forward test results on all individual Choice Scholars (vs. “aggregated”) to the DOE.
Sounds like another “regulation” approved by a state board without the legal authority to do so… at least to us. NHN has brought this to the attention of a NV State Senator who contacted the LCB and got a circular reasoning justification for the regulation. We’ve also discussed this with the current Superintendent of Public Instruction but again received an even worse justification for the regulation.
Since this program thankfully does not affect homeschooled children, NHN will let private schools figure this out for themselves. However, it just goes to show that IF public funding is involved – the state WILL control (and regulate to death) any “school choice” program accepting taxpayer funding.
NHN’s 2017 position on the NV-ESA, written by Barbara Dragon:
Self-funded, Private Education vs. Government Funded School Choice:
The Liberty of Parents and Private Schools vs. Government Control
CONTINUING UPDATES on the NV-ESA (in reverse chronicle order):
03/11/2018 – Vouchers: A Thorn By Any Other Name written by Dr. Marlene McMillan June 14, 2016 accurately expresses the problems we’ve found be true with “government funded school choice.” Her concluding paragraph sums it up pretty well,
Entitlements and Liberty are opposing goals.
To have Liberty, you have to have liberty of conscience, which is greater than freedom of thought. To have freedom of thought, you have to have the opportunity and ability to learn from sources of your own choosing. To have educational liberty, you have to pay for that education yourself. The goal of statist education is to raise loyalists to the State. The goal of private education is to teach what the parent wants their child to be taught. As soon as all education is funded by the civil government, liberty of conscience is gone. When you pay for your own education, you fund your own liberty.
When you accept government funding in any form, you agree to restriction of opportunity, limited thought, Political Correctness, and inevitably tyranny.
02/18/2018 – Nevada Policy Research Institute (NPRI) continues to push for funding of the Nevada Education Savings Account . Note that NPRI still does not address the reality of burdensome regulations being added to the program over time that would restrict the Liberty of both parents and schools choosing to accept government funding. Proponents argue that just won’t happen… see our 11/20/2017 post regarding the NV Choice Scholarship Program to see their “ignorance” is disingenuous.
12/18/2017 – There’s a Due Process Problem with Homeschool Regulations (Foundation for Economic Education)
6/29/2017 – Homeschoolers Don’t Need Federal Help (American Spectator)
6/13/2017 – 2017 Legislative Session Wrap-up (NHN)
6/9/17 – EdChoice vows to continue fighting for direct taxpayer funding of ESAs in Nevada
Robert Enlow, President of EdChoice (formerly Friedman Foundation, headquartered in Indiana), who wrote the NV-ESA bill in 2015 (SB 302, Hammond) is determined to push the cause to fund ESAs in Nevada in 2019 (SB 506, the 2017 funding bill for the ESA program, failed to pass) – The Education Examination: What did lawmakers do for students, teachers this session? (The Nevada Independent).
“Some Nevada Republicans vowed to continue the fight for school choice. So did the leader of EdChoice, a national organization dedicated to advancing school choice.
“I don’t think the legislators listened to parents,” said Robert Enlow, the president and CEO of EdChoice. “I think this is a bipartisan failure — not simply a Republican or Democrat failure.”
Enlow said he expects the thousands of Nevada families who were on ESA waiting lists to continue pressuring lawmakers to fund the program in 2019. He also lobbed some of the blame on Sandoval, saying he wished the Republican governor would have “stayed true to his word” and flexed his leadership muscle to ensure the school-choice program moved forward.
“Nevada may have had a hiccup, but it certainly didn’t stop the momentum,” Enlow said.”
6/9/2017 – Buyer Beware: School Choice and Voucher Programs Require Alignment With Common Core (www.glenbeck.com)
6/8/2017 – Irony of ESA defeat: Democrats vote to expand school choice (click for video)
What Victor Joecks of the Las Vegas Review Journal fails to understand is that the Opportunity Scholarship program is limited to private school (Licensed or Exempt) enrollment ONLY and that these children will not be FORCED to be “accountable to the state” through annual standardized testing. Instead, they will enjoy the same FREEDOM that their private school classmates enjoy… the chance to academically progress as determined by their teachers rather than prove what they’ve learned on a test. That is why the Governor’s Opportunity Scholarship is superior to the ESA program… but no one seems to notice or be concerned with the “Liberty” issue for both the ESA students and the private schools accepting these students.
There is already a certain amount of freedom (though not enough in our opinion) for exempt private schools in Nevada under current law and regulations. But the Democrats proved that the ESA program will be regulated to death with their Conceptual Amendment to Sb506 offered in the 11th hour.
Let’s work to increase the donation limits to Opportunity Scholarships and broaden the income eligibility of the OS program to allow middle class students the chance for “choice” rather than restricting the ability of private schools to educate children as they and parents determine to be best, free from government controls that come with direct taxpayer funding.
As Jane Robbins of American Principals Project points out, “While efforts to shatter the government monopoly on education are laudable, extreme caution must be exercised to ensure – if this is even possible – that when government money follows the child, government regulations don’t follow as well.” http://thepulse2016.com/…/19/first-look-at-gop-platform/
6/6/2017 – NV Legislature ends without funding the NV-ESA.
Instead, a one-time “donation” was made by the Legislature to Governor Sandoval’s Opportunity Scholarship program (created in 2015) for low-income students to attend private schools. The upside of this program is that children attending private schools using scholarship funds enjoy the same ability to achieve academic progress as their private-funded classmates as determined by the private school and NOT “accountability” through a “state-approved” norm-referenced achievement examinations in mathematics and English language arts each school year . Further, private schools are FREE to operate under existing state law without the over-burdensome regulations being debated for the unfunded NV-ESA program.
More information on Opportunity Scholarships:
- Nevada Educational Choice Scholarship Program (AB 165, 2015) – NV Dept. of Ed.
- Nevada Opportunity Scholarships Summary Report (AB165) – NV.DOE
6/2/2017 10:15 pm –
As the saying goes… “It’s not over ’til the fat lady sings!” Republican legislators gain unexpected leverage in push for ESAs
6/2/2017 – Looking less and less like that the NV-ESA will be funded this session… time is running out, Legislature ends 6/5/17 at midnight and the Governor says, “No Special Session!”
We wish that proponents of government funds following the child for their education in Nevada had used a better vehicle than the state funded ESA proposal. As homeschoolers in this state know all to well from our own history, government bureaucrats love to “control” the actions of citizens via statute and regulation.
As the Democrats’ Conceptual Amendment to Sb506 to the 2017 ESA funding bill, SB 506, demonstrated, taxpayer funds = government controls. The risk to Liberty of private schools to operate separate from governmental controls is just too great when attempting to access “public” funds.
Personal tuition tax-credits such as the federal Coverdell ESA (parents save their own money to pay tuition expenses “tax free” like Health Savings Accounts) are much more effective and less problematic. Granted Nevadan’s don’t pay state income tax but other ways to help parents choose a different education option for their children could have been found without burdening private schools with “accountability” to state government.
Texas has also been squabbling over “universal” government funded ESAs during their legislative session this year which prompted HSLDA to explain the differences; https://www.hslda.org/docs/news/2017/201703010.asp
5/30/2017 – UPDATE on SB 506, ESA Funding Bill
At 3:00 pm on Memorial Day the Democratic controlled NV Legislature scheduled a 6:00 pm surprise “joint” (Sen. Finance & Assembly Ways & Means) hearing on “the Governor’s” ESA bill, SB 506! Barbara Dragon read the email from the Assembly W&M at 4:30 and jetted up to Carson City.
It was NOT pretty… the upshot, Democrats: “We’ll consider a new ‘business tax-credit scholarship’ bill (instead of funding the ESA from the state’s general fund) with tighter controls including non-discrimination laws and anti-bullying laws applied to private schools who take the funding.” Yup, there is NO SUCH THING AS A FREE LUNCH!
Barb testified on behave of NHN as “neutral” in order to clarify that in the bill “homeschoolers” were specifically denied access to the funding (Section 25, Subsection 2) at our request in 2015 and again this year. The need to testify was due to a Conceptual Amendment to Sb506 introduced by the Democrats Monday evening. In the conceptual amendment, they used the word “homeschooling” when referring to an “ESA Opt-in Child receiving education from the parent who applies to be a Participating Entity.”
NHN’s position –
- Homeschooling is covered in separate statute, NRS 388D.010-.070.
- The ESA Opt-in Child is defined in NRS 388D.100-.700.
- Two separate statutes, two different set of rules.
- By law, “homeschooling” is defined as parents taking “full responsibility” for the education of their children, including the financial burden. Homeschool parents don’t want money from the state, just their freedom.
- As negotiations move forward on “government funded school choice,” we call on NV Legislators to not confuse “private, self-funded homeschooling” with an “ESA Parent Participating Entity” providing a home based education to their child as has been continually done in the news media.
- The Conceptual Amendment to Sb506 substantially alters the program and restricts the freedom of private schools to operate free from burdensome government control. This is something NHN has been warning could happen ever since the introduction and final passage of SB 302 in 2015.
Reno-Gazette Journal – No deal yet on ed savings accounts; GOP members not pleased
Las Vegas Review Journal – Education savings accounts get hearing but no action in Carson City
Las Vegas Sun – Future uncertain for Nevada tuition, school supplies voucher
The Nevada Independent – Fragile compromise on ESA seems further off after Democrats call surprise hearing
- THE PROPOSED AMENDMENT (from Nevada Independent article):Negotiations over the past few days were largely in the hands of Anderson and Assembly Speaker Jason Frierson, who were reportedly close to reaching a compromise Monday morning before Democrats abruptly scheduled the hearing in the early afternoon. Sandoval’s chief of staff Mike Willden said before the hearing that they had received no advance notice of what amendment Democrats planned to propose.The proposed conceptual amendment, presented by Watkins but discussed behind the scenes in recent days between leadership, would substantially alter the original bill.“This isn’t about my personal beliefs,” Watkins said. “This is about the beliefs that I think can be supported on both sides of the aisle and actually make it to the governor’s desk.”Key points include:
- Creating a tax credit structure for ESAs similar to the system in place for Opportunity Scholarships, a scholarship program approved in 2015 that gives businesses tax breaks on their Modified Business Tax (on payroll) for donating money to scholarship programs.
- Capping tax credits at $15 million per year for a total of $30 million over the two years of the budget.
- Starting the program in January 2018.
- Determining eligibility based on a sliding scale based on parental income — families at 185 percent of the federal poverty line would receive $7,000, more than the per pupil spending that exists now, and families at 10 times the poverty line would receive about $600.
- Gives priority to 1 and 2 star schools, Title 1, students who need special education, foster kids, reservations, military kids and other students with learning disabilities.
- Require schools be in operation for at least a year, accredited by the state or independent accrediting agency, located in Nevada, have a licensed administrator on staff and adopt non-discriminatory language in their bylaws.
- Allows additional uses for funds including internet service provider expenses, computer purchase and uniforms, if required by the school.
- Prohibits schools from charging ESA students more than non-ESA students
- Implement an undefined “funding cap” based on a proportional share of students in the school district.
5/23/2017 – Just to be clear, we need to say it again as we continue to read false claims in the media saying that parents may use the ESA to “homeschool.” NO, they may not!
If the NV-ESA is funded via SB 506 during the 2017 Legislative session, parents who use the funding to provide an education to their child will NOT be legally “homeschooling.” It may seem like splitting hairs but we want LEGISLATORS and all government officials to understand to that there is a difference.
- Parents who submit a “Notification of Intent to Homeschool” are SELF-FUNDING and directing the education of their underNRS 388D.010-070 – HOMESCHOOLED CHILDREN. SB 404, aka the “Homeschool Freedom Bill,” was passed unanimously by the NV State Legislature in 2007.
- Parents choosing to accept government funding via the NV-ESA will be submitting a “Notification of an Opt-in Child” and are subject to all laws and regulations pertaining to the program underNRS 388.100-140 – OPT-IN CHILDREN.
Two different sections of law, two different sets of “rules.”
Please read on in this blog for a DETAILED explanation of issues with the NV-ESA.
We also discuss the idea of the federal government funding education outside the public school system here.
by Lisa Hudson, The National Pulse
1/23/2017 – Question: Why shouldn’t NV Legislator’s regulate self-funded homeschooling if they vote for funding the ESA program that does come under government control?
Answer: Parents have the fundamental right to direct the health, education, and welfare of the child which is upheld in Nevada statute, case law and by the US Supreme Court. Homeschool parents in Nevada who do not accept taxpayer funding have the ultimate right and responsibility to ensure that their children are educated within the framework of the child’s age and abilities, as determined by the parent. However, the court may intercede in the event of “education neglect” as allowed in NV statute. So, in Nevada the “best interest” of a child who is homeschooled is determined by their parents or guardians, not the government, which is in line with the views of delegates to the 1884 writing of the Nevada Constitution and upheld by the Nevada Supreme Court.
2016 – Nevada Supreme Court finds NV ESA constitutional but the funding mechanism unconstitutional.
In late 2015, two lawsuits were filed to stop implementation of the NV ESA program established by SB 302. While the the court found the ESA constitutional it found that the way in which the 2015 Legislature funded the program unconstitutional and thus the ESA program in non-operational until such time as the law is funded correctly (not from the Distributive School Account for Public Schools).
However, the decision handed down by the NV Supreme Court on September 29, 2016 in Schwartz v. Lopez revealed some noteworthy comments with regards to the rights of parents in making decisions regarding their children’s education. The court found that delegates to Nevada State Constitutional Convention of 1864 discussed the education of Nevada children in depth, “And although the debates surrounding the enactment of Article 11 reveal that the delegates discussed the establishment of a system of public education and its funding, they also noted the importance of parental freedom over the education of their children, rejected the notion of making public school attendance compulsory, and acknowledged the need to vest the Legislature with discretion over education into the future.” (Page 19) [Emphasis added]
In addition to referencing original documents from the 1864 Constitutional Convention, the court also references a Nevada Supreme Court Summary, Nevada’s Education Savings Accounts- A Constitutional Analysis by Thomas W. Stewart and Brittany Walker. Comments relative to parental choice and control of their children’s education are highlighted on pages 12-15. This discussion, sometime in the future, may be of great importance to parents choosing to homeschool their children (free from government funding/control) should the Nevada Legislature attempt to infringe on the right of parents to direct the upbringing and education of their children.
Blog Update: January 22, 2017 – Barbara Dragon, NHN Officer Emeritus (original article written March, 2016)
Self-funded Private Education vs. Government Funded School Choice:
The Liberty of Parents and Private Schools vs. Government Control
- Nevada’s “Education Savings Account” program now being proclaimed “the model” for other states in the publicly funded “school choice” debate. Or is it?
Background: During the 2015 Nevada Legislative Session, State Senator Scott Hammond requested a Bill Draft Resolution (BDR) for a government funded alternative education option for Nevada K-12 students. The Friedman Foundation (renamed Ed Choice in 2016) assisted Senator Hammond in the writing of SB 302, the Nevada Education Savings Account bill. What makes Nevada’s ESA unique from existing smaller programs in four other states (Arizona, Florida, Mississippi, and Tennessee) is that it is “universal”, meaning it is not “means” or “needs” tested and is available to all NV public school students enrolled for a minimum of 100 days regardless of family income level or school failure rates.
Authors of SB 302 proclaimed, “It allows parents to remove their children from their assigned public schools and access a portion or all of their children’s public education funding to pay for services like private school tuition, curriculum, learning therapies, tutoring and more.” [i] This new program passed the 2015 NV Legislature along strict party lines (all Republicans in support, all Democrats opposed).[ii]  Currently, state legislatures in Texas, Indiana, Idaho, Iowa, Pennsylvania, Missouri, and even President-elect Trumps’ new administration are mulling government funded ESAs to expand “school choice” in 2017 and the Nevada ESA program is the model for many of the proposals.
An Education Savings Account (ESA) program is different from a “voucher” they say, since money from the state’s Distributive School Account (DSA) is not being paid directly from the state to a religious private school (Blaine Amendments in many state constitutions prohibit the use of public funding for sectarian purposes). Rather, the money (between $5,100 to $5,700 in NV) is to go from the state’s Distributive School Account into the Education Savings Account in the name of the child, whose parents then choose from government “approved” resources where to spend the money so that the child receives an education as compelled by state compulsory attendance laws.[iii] This, proponents say, means the parent, not the state, is choosing the education modality for the child and the parent is then “empowered” to choose a private religious school or use religious materials for the education of their child. The NV Supreme Court upheld this in Schwartz v. Lopez.[iv] However, this new “empowerment” called “school choice” is still controlled by government when compared to self-funded, private homeschooling that is rooted in the parent’s right to direct the education of their child, free from government control, in other words, Education Liberty.
 NOTE: Two lawsuits were filed in NV District Court in late 2015 against the new ESA program. Both lawsuits were heard before the Nevada Supreme court and a final decision was handed down on September 29, 2016. Although the court ruled that the ESA law does not violate the Blaine Amendment in the Nevada Constitution and allows the Legislature to use public dollars to fund an ESA program, the Legislature did violate the NV Constitution by passing the ESA bill prior to passing the education funding bill. The NV Constitution requires that the public schools be funded before any other budget item is approved in our bi-annual sessions. Further, the court seemed to imply that money allocated by the Legislature to the public schools cannot be used to fund an ESA for a Nevada school-age child. This has been a pivotal element of the Ed Choice ESA school choice initiative. Consequently, a new “funding source” will need to be found and approved by the Nevada Legislature in 2017 if the program is to see the light of day. Further, a new funding source may impact the rest of the mechanics of the NV-ESA program and raise a new threat to private and home school autonomy. http://nevadahomeschoolnetwork.com/WP/wp-content/uploads/2016/12/16-30306-NV-SC.Schwartz-v.-Lopez-09.29.16.pdf
- The ESA law has muddied the waters for homeschoolers in Nevada!
Many parents eager to receive state funding for the education of their children are saying that the new NV-ESA program is “just a different way of homeschooling”, it is not! Further, some elected officials are now quick to venture into this new area of “public/private ventures” in order to give parents a “choice”, at tax-payer’s expense, in the education the child receives putting other’s freedom at risk. Let me explain.
First and foremost, Nevada parents, who choose to use the ESA program, will NOT be “homeschooling” under NV statute. Two statutes, NRS 392.070(2) and 388D.020 allow parents, who receive NO MONEY from the state, to educate their children free from government control, although educational abuse and neglect statutes do apply as safeguards.[v] Second, “homeschooling” is legally defined in Nevada Revised Statutes, NRS 385.007(3) differentiating it from “home based education” through the NV-ESA.[vi] And while imitation is the best form of flattery, Nevada Homeschool Network (NHN) became alarmed when Senator Hammond introduced an amended version of his original ESA bill in April of 2015 that no one had been able to read prior to the hearing in the NV Senate Education Committee (this seems to be a pattern repeating itself in other states in 2016 and 2017 as ESA bills are being mulled over… but not available for public review). The proposed ESA language threatened the autonomy of self-funded homeschoolers in Nevada.
NHN initially opposed the bill, SB 302, as introduced due to the Senator’s references to homeschooling in his verbal introduction of the bill.[vii] Both public school and homeschool students (but not existing private school students) were to be able to access ESA funding.[viii] Further, the Senator’s initial version attempted to use the NV homeschool law as the vehicle for this new program, blurring the distinction between a self-funded homeschool child and a child receiving a “home based” education through the government approved ESA program. However, Senator Hammond agreed to work with NHN to address our concerns. As a result, NHN offered an amendment to SB 302 that protected NV homeschooling but established an ESA “Opt-in Child.”[ix]
The amendment proposed by NHN created a fourth option for parents to meet the compulsory attendance law, NRS 392.040 (requires a child between the age of 7 and 18 to be enrolled in a Nevada public school or receive an exemption).[x] In addition to a public school, a private school, or a homeschool; parents of children enrolled in a public school will be able to apply for a NV-ESA grant and the child approved for the ESA program will legally be classified as an “Opt-in Child”. These children will receive their education from an “approved” Participating Entity (PE) under the oversight of the NV State Treasurer (NST) and to a lesser extent, the NV Department of Education (NV-DOE).[xi]
Proof of this “muddying of the waters” affect has since filled pages of articles, editorials, and blogs across the country on how the government funded ESAs will provide parents more “school choice”, including “homeschooling.” But the “unintended consequence” is that government funded ESAs have also created the opportunity for critics of a parent’s right to self-fund and direct the education of their child FREE from government control to call for more regulation of “homeschooling” whether it is funded by the government or not. For instance, merely by substituting the word “home-school” for an “ESA Opt-in Child”, a NV teacher’s union lobbyist is now proving our point by seemingly calling for tighter rules “on homeschooling” if the NV-ESA is to be funded as stated by John Vellardita, Executive Director of Clark County Education Association, “…means testing or tightening the rules for home-school parents could potentially be among the union’s proposals regarding ESAs.”[xii] Granted, Mr. Vellardita probably doesn’t even know the legal distinction but that was the very point we were trying to make to the Nevada Legislature two years ago!
Just as people often confuse “virtual charter schools” attended by public school children “at home” with “parent funded/directed homeschooling”, government funded ESAs will added another layer of confusion in the minds of everyone! This “muddying of the waters” will bring into question just who IS ultimately responsible to provide education to children, the parent(s) or the state? Thankfully, US Supreme Court decisions through the years have agreed that parents have the fundamental right to direct the education of their child and are therefore ultimately responsible for the education of the child.[xiii] Despite these decisions; elected officials, “think tanks”, journalists, and others have a tendency to infringe on these rights with support for “well-meaning” but none-the-less invasive government programs without regard for Education Liberty.
- Applications, approvals, regulations, and requirements – let’s understand a government funded ESA (not to be confused with a parent-funded “Coverdell” ESA).
To qualify for the NV-ESA program, a child must first be enrolled full-time in a public school or public charter school for not less than 100 consecutive days just prior to applying for the ESA grant.[xiv] Current private school and/or homeschool children are not eligible. However, these children may enroll in a public school for 100 days to become eligible relinquishing their private school or homeschool status.
Once approved for the ESA, parents may then choose an approved Participating Entity (PE) to provide education to the child. A Nevada private school (licensed or exempt), a regionally or nationally accredited private online school, an “eligible institution” defined as a NV college or university, a state or regionally certified tutor or tutoring agency, or a parent may all apply to become a Participating Entity. It is the “Participating Entity” (or a combination of PE’s) that will provide an education to a NV Opt-in Child. The Nevada State Treasurer is responsible for annually approving all ESA Opt-in students as well as Participating Entities and curriculum purchased through the ESA program.[xv]
The approved PE provides the education to the child, meets applicable state requirements (including annual testing of the child with any norm-referenced national standardized test in mathematics and English language arts), and is paid from the ESA by the parent for their services. A parent who has been approved as a PE may purchase approved curriculum and materials (the current State Treasurer is saying, as long as the curriculum is “educational” it will be approved), the annual standardized test for the child, and/or pay fees associated with services provided by other approved Participating Entities (including transportation costs) using the funds in an ESA. Parents may not pay themselves for teaching the child, or anyone else directly teaching the child, who is not an approved Participating Entity, nor pay for additional “non-educational” expenses such as private athletics participation.[xvi]
 On December 1, 2016, during a National Summit on School Choice through ESAs, Mr. Grant Hewitt, Chief of Staff for the Nevada State Treasurer noted a problem with the definition for “Participating Entities” in the new law. Currently, there are no “state or regional certification systems” for tutors or tutoring agencies. Thus, only a NV certified teacher may be approved by the State Treasurer. This creates greater restrictions than intended by the bill’s author for the ESA program. Mr. Hewitt’s testimony begins at the 35:27 minute marker on this video; https://www.youtube.com/watch?feature=youtu.be&v=jxhgaYjMuqE&app=desktop
- Aside from all the “hoops” to maneuver through, an ESA sounds great, right? Then why should self-funded homeschool parents be concerned with government funded school choice?
Whenever state funding is involved in the education of a child there must be accountability to the tax-payer for the use of that money. New state imposed “accountability measures” on both the public school system and public charter schools, over the last several years, is what (at least in part) has spurred the government funded school choice movement due to the failure of public schools to meet these accountability standards. Self-funded homeschooling in Nevada assures the parent who takes full responsibility for the education of the child (including the financial burden) of their fundamental parental rights free from government control.
When NHN first became aware of the push to utilize public funding for the education of children in a non-public school in Nevada we issued a position statement opposing the use of such funds for homeschooling in Nevada which in part reads,
- Whereas, NHN is concerned that alternative education funding programs intending to benefit a student with a government controlled “choice in education” will jeopardize homeschool autonomy from government oversight; now, therefore,
- NHN is opposed to adoption of any alternative education program in this state that utilizes taxpayer funding, either directly or indirectly, on behalf of a child who is being homeschooled pursuant to NRS 392.070, including government controlled voucher programs and Education Savings Accounts. [xvii]
Our chief concern was and remains with the “controls”, including future controls, the government will put on the private school, education provider, and/or parent who accept ESA funding under the guise of “accountability” for the use of tax-payer money, essentially creating a system that ultimately requires children to be educated to the satisfaction of the government, not the parent. Two points need to be made:
a) Could private schools, education providers, and parents who accept government funding through an ESA, now in actuality, be considered a “public school” under federal or state law? There a differing opinions on this. However, the Nevada Supreme Court said in the recent decision on Swartz v. Lopez, “Sb 302 does not alter the existence or structure of the public school system. Nor does SB 302 transform private schools or its other participating entities into public schools.”[xviii]
b) But the court also acknowledged the Legislature’s responsibility in establishing requirements for the operation of the ESA program, “We recognize the ESA program imposes conditions on the parents’ use of the funds in their account and also provides State oversight of the education savings accounts to ensure those conditions are met.”[xix] It is the “conditions” of State oversight, which may be changed by the State Legislature, that pose the greatest concern and establish the fact that the government, not just the parent, serves to monitor the child’s education within the ESA.
If the NV-ESA program is ever funded by the NV State Legislature, Participating Entities receiving ESA funds will be held accountable to the tax-payer for the education of the child. Under existing NV statute “Exempt” Private Schools and Homeschools are not “accountable” to the state beyond modest “notification” requirements precisely because they receive no tax-payer funding from the state.[xx] While “accountability” in the 2015 NV-ESA law is currently quite low (assuming you don’t mind your child being enrolled in a public school for 100 days, all the paperwork, submitting your child an annual nationally standardized test in all grades, and submitting results to the state for inclusion in the State Longitudinal Data System), these accountability measures will remain as is only depending on who controls the Legislature and the Governor’s office at any given time. This is the “slippery slope” for self-funded homeschoolers and raises more questions:
c) While NV homeschoolers currently enjoy the hard-won freedom to direct the education of their children free from government control with the passage of the Homeschool Freedom Bill in 2007[xxi], will parents providing a “home based” education utilizing an ESA be as dedicated to the academic success of their children as traditional, self-funded homeschoolers have proven to be over the past 35+ years?
Dr. Brian Ray, National Home Education Research Institute (NHERI) provides the following information on students being educated via a self-funded, private homeschool:
- The home-educated typically score 15 to 30 percentile points above public-school students on standardized academic achievement tests. (The public school average is the 50thpercentile; scores range from 1 to 99.) A 2015 study found Black homeschool students to be scoring 23 to 42 percentile points above Black public school students (Ray, 2015).
- Homeschool students score above average on achievement tests regardless of their parents’ level of formal education or their family’s household income.
- Whether homeschool parents were ever certified teachers is not related to their children’s academic achievement.
- Degree of state control and regulation of homeschooling is not related to academic achievement.
- Home-educated students typically score above average on the SAT and ACT tests that colleges consider for admissions.
- Homeschool students are increasingly being actively recruited by colleges. [xxii]
d) If private schools, education providers, and parents receiving tax-payer funds are increasingly “regulated” by the state either due to fraud or abuse of the program, or an ESA Opt-in child simply doesn’t perform well on an annual test; what will stop the state from trying to regulate self-funded homeschoolers and private schools not accepting government funded vouchers or ESAs as well?
Matthew Gerwitz, a homeschool parent in Florida addressed the concerns of freedom loving homeschool parents across the nation in 2015, “Even if school vouchers (or now ESAs) were offered with the best intentions, they could never remain that way because government, by default, seeks to control,” he said. “School vouchers are a bad idea that should be avoided at every level — especially among homeschoolers.” “There is no need to eat the ‘king’s meat,’” Gerwitz continued. “Homeschoolers do not need the good graces of government to do what’s right by their kids; non-homeschoolers need to learn to stop depending on the government as surrogate parents. Vouchers are completely unnecessary if parents do their jobs.” [xxiii]
History shows us that as control of state legislatures change from election to election so do the laws and regulations citizens and businesses must operate under dependent on “who” is in control of state government. As Kathy Thomsen said in 2010, “Drafters of school choice legislation attempt to convince patrons that laws can be crafted with appropriate language to assure complete autonomy that protect private schools. Abundant evidence proves such assurances cannot be trusted.”[xxiv] Education Liberty is at risk each time state legislatures are in session.
No legislation can be written that can’t or won’t be reversed or added to in successive legislative sessions. Now that the NV Legislature shifted from Republican back to Democratic control in the 2016 election, this has raised considerable doubt for the future of the NV-ESA program due to the funding problems created by the NV Supreme Court decision in Schwarz v Lopez plus the fact that Democrats unanimously opposed the 2015 ESA bill .[xxv] Further, as the public-at-large questions how ESA dollars are spent, additional “controls” are more likely than not to be put in place restricting the freedom of private schools, providers and/or parents accepting the funding.
- What might be other “negative” consequences to public funding of private education?
If Nevada’s Republican Governor and the Democrat-controlled 2017 NV Legislature do decide to find funding elsewhere in the state budget for the ESA, the program will be adapted with new tighter controls according to Nevada Assemblywoman Irene Bustamante Adams.[xxvi] This will raise even more questions.
a) Will tax-payers then have a new “subsidy” or entitlement program to worry about?
b) Will taxes be continually raised to fund public/charter schools AND now government funded school choice as well?
c) Will the general public be supportive of tax dollars being spent on private schools, education providers, or in their neighbor’s home or will they consider ESAs and vouchers to be redistribution of wealth?
d) Are vouchers and ESAs and their “accountability strings” just another form of public education due to the requirement of an annual nationally norm-referenced assessment for the child?
e) Would tax-credit scholarship organizations or tax-credits for parents who choose to educate their children outside of the public school system be less government dependent and less intrusive?
These questions remain to be answered as the saga of “government funded school choice” unfolds in the years ahead. But studies are now indicating, despite all the claims of “excellence”; former public school students currently attending private schools in states with voucher programs ARE NOT testing any better than their public school age-mates.[xxvii] This should be of great concern; the autonomy from public education that private and home schools currently have in most states is at great risk. Homeschoolers should fully understand that accepting funding from the government will bring limits to the moral decisions parents make about education provided to their child.
And now the federal government is looking to fund “school choice?” As Jane Robbins of American Principals Project points out, “While efforts to shatter the government monopoly on education are laudable, extreme caution must be exercised to ensure – if this is even possible – that when government money follows the child, government regulations don’t follow as well.”[xxviii] A “Trojan Horse” may indeed be in our presence.
- Do “school choice” advocates really care about YOUR children? Or is it all about “breaking the monopoly” of the Constitution-required provision of a public school system?
In NHN’s discussions with Ed Choice during the 2015 NV Legislative session it became abundantly clear they do not understand the “liberty issue” that self-funded homeschool parents have advanced nationwide for the last thirty-five years. Ed Choice, Excel in Ed[xxix], The Heritage Foundation[xxx], (check the donor lists for these groups) and many other “think tanks” are apparently willing to see homeschools and private schools become collateral damage in their quest to acquire the holy grail of school choice. Ed Choice has expressed that “some accountability to the government” is “reasonable” if schools, education service providers and/or parents accept tax-payer funding, all in the name of “breaking the public school monopoly.”
Truth be told, advocates of government funded school choice seem to have no problem with ALL parents being held accountable to the government for the education of the parent’s child, just ask them. Further, government funded assistance programs undermine the liberty of private schools and homeschools to make the educational decisions for the children they teach. School choice advocates say, “It’s only a test, and it’s reasonable to require a test to ensure the child is being educated.” Our response is no, it is not if the test doesn’t reflect the material the child has been taught. A “national” test promotes the existing public education model, making all citizens conform to this model is not “choice”, nor is it FREEDOM. If homeschool parents or private schools want to use “nationally norm-referenced tests” to see where their child stands in relationship to public school students that’s fine, but we don’t support the concept of state mandated testing for all children to “prove” the “correct” education is being provided, that is where this is all leading whether parents or schools accept public funding or not.
But Nevada homeschool parents can find a silver lining in the court battle over the ESA program with this nugget of information from the Schwarz v. Lopez decision,
“And although the debates surrounding the enactment of Article 11 reveal that the delegates discussed the establishment of a system of public education and its funding, they also noted the importance of parental freedom over the education of their children, rejected the notion of making public school attendance compulsory, and acknowledged the need to vest the Legislature with discretion over education into the future. See Debates &Proceedings of the Nevada State Constitutional Convention of 1864, at 565-77 (Andrew J. Marsh off. rep., 1866); see also Thomas W. Stewart & Brittany Walker, Nevada’s Education Savings Accounts: A Constitutional Analysis (2016) (Nevada Supreme Court Summaries), http://scholars.law.unlv.eduffivscs/950, at 12-15 (discussing the history of Nevada Constitution Article 11, Section 2).”[xxxi]
The fact that delegates to the Nevada State Constitutional Convention of 1864 recognized and declared “parental freedom over the education of their children” and “rejected the notion of making public school attendance compulsory” should give Nevada HOMESCHOOL parents security in fighting any attempts to regulate or control homeschooling beyond that which is currently provided in law in future Nevada Legislative Sessions.
Although School Choice advocates like to say, “government funded school choice empowers parents”, they seem to have little understanding or regard for the fundamental rights of parents to direct the health, education, and welfare of the child FREE from government control. “School Choice” is about government control of the education provided to a child. It is not about education provided through private schools or homeschooling free from those controls. NHN has developed an excellent chart, Education Choice Options in Nevada, showing who controls the education of the child dependent on what “choice” of education modality the parent makes. [xxxii]
- Several state legislatures are now considering ESA bills, is yours?
Homeschool parents in states considering education reform bills need to fully understand that state-funded ESA grants have accountability strings attached. Parents who choose to NOT accept state funding must be vigilant in protecting their state homeschool and/or private school law! The success of homeschooling is without question but now imitators seek to capitalize on the hard work of parents who have dedicated their lives to their children via self-funded, private homeschooling. We must continue to educate parents in the biblical and moral “choice” to educate their children either through homeschooling or private schools without accepting funding from the state or federal government… or we risk losing that right entirely.
- IAHE Action, facing the threat of an ESA program in Indiana, has many excellent blog posts expressing their concerns with ESAs.[xxxiii]
- Idaho homeschoolers (CHOIS & ICHE) are gearing up for a possible fight in their state in and have an excellent article on this topic as well, Coming Soon: FREE MONEY.[xxxiv]
- Oklahoma homeschool leader, Cindy Nicolai (Constitutional Home Educators Alliance) presented an excellent “Pinocchio” analogy at the 2016 HSLDA Leadership Conference on why homeschoolers should avoid government funded school choice. [xxxv]
- To date, Homeschool parents in Texas, Missouri, Michigan, Connecticut, and other states are also grappling with potential government funded school choice bills.
- The battle for homeschool freedom continues…
In the 2001 article, Charter Schools: The Battle for Homeschool Freedom, homeschool champion Christopher J. Klicka said, “Freedom is the answer. Freedom, I believe, is more important than “freebies.”[xxxvi] How succinct! And lest we think that today, after 3 decades of success, no one could possibly object to parent funded and controlled education Dr. Brian Ray reminds us otherwise in his recently published article, Despising Homeschooling: Contorting Rights on the mindset of the “education elites.”[xxxvii] We must continue the battle for Education Liberty for the sake of future generations.
To that end, NHN and NV homeschoolers will remain adamant in defending the homeschool law and protecting themselves from being lumped in with “Public School at Home” students (virtual charter schools) and now “ESA Opt-in” children. As stated earlier, NV homeschoolers are not accountable to the public school system or state government because we receive no money from the state. Further, NV homeschool parents take “full responsibility”, including the financial burden, for the education of their child. NV homeschoolers will not abdicate the right and responsibility to educate our own children, as we see fit, to the government.
We encourage homeschool leaders and parents across the country to do the same; understand that your children do not belong to the state, but are in fact, your prodigy, and as such your responsibility. We must stand up to the powerful financial influences that intend for government to retake control of ALL education provided to children in the United States. School choice vouchers and ESAs are just the first steps towards this ultimate but often unstated goal of education reformers.
- Concluding Thoughts
- Perhaps voucher/ESA grant programs will be beneficial in spite of the government controls placed on them and will provide some parents more options in the education of their children for those willing to accept the yoke.
- While NHN supports the concept of ESA’s for parents who voluntarily choose to use them, self-funded HOMESCHOOLING without government funding/controls – “Parent Responsibility-based Education”, must remain intact.
- However, the line of demarcation between “private” and “public” education is fast disappearing and it is not inconceivable that government will once again seep into our “private” lives because of those looking for financial assistance from the government to educate their own children.
- The waters are becoming muddied as evidence by those parents who are demanding “their fair share” of tax-payer money, desiring to use government funding to educate their children at home and yet insist they are the same as self-funded homeschoolers and not “just” parents providing a government approved home based education.
- NHN Officers continue to be watchful and strive to educate parents, leaders, and public officials; self-funded, private homeschooling is an Education Liberty issue in our state.
On a personal note, I began homeschooling my children in 1990 at which time I joined other parents fighting for homeschool freedom in Nevada, one of most restrictive states to homeschool in at that time. As a result, I know all too well how easy it is for elected, appointed, and/or employed government bureaucrats to say that ALL education of children in the state must be regulated by government. We must not go back to Egypt!
Please, please take the time to educate yourselves on the differences between homeschooling and government-funded education programs. Continued homeschool FREEDOM/LIBERTY is dependent on staying informed and engaged.
[i] Ed Choice, Robert Enlow President. From their website; https://www.edchoice.org/school-choice/types-of-school-choice/
[ii] Nevada State Legislature, 2015, Final Votes on SB 302; https://www.leg.state.nv.us/Session/78th2015/Reports/history.cfm?ID=705
[iii] Ed Choice, from their website page on the Nevada program; https://www.edchoice.org/school-choice/programs/nevada-education-savings-accounts/
[iv] Nevada Supreme Court, ”The parent decides where to spend that money for the child’s education and may choose from a variety of participating entities, including religious and non-religious schools.”, page 24, Swartz v. Lopez, Case No. 69611, 09.29.2016, http://nevadahomeschoolnetwork.com/WP/wp-content/uploads/2016/12/16-30306-NV-SC.Schwartz-v.-Lopez-09.29.16.pdf
[v] Nevada Homeschool Network, Nevada Homeschool Laws; http://nevadahomeschoolnetwork.com/legal/nevada-homeschooling-laws/
[vi] Nevada Revised Statute, 385.007 (3), https://www.leg.state.nv.us/NRS/NRS-385.html#NRS385Sec007
[vii] Hammond, Senator Scott, Nevada Senate Education Committee Hearing on SB 302, 04.14.2015; http://nvleg.granicus.com/MediaPlayer.php?view_id=14&clip_id=4302
[viii] 2015 NV Legislative session, Senate Bill 302 As Introduced 04.14.2015; https://www.leg.state.nv.us/Session/78th2015/Bills/SB/SB302.pdf
[ix] Nevada State Legislature, 2015, SB 302, Amendment No. 639; https://www.leg.state.nv.us/Session/78th2015/Bills/Amendments/A_SB302_639.pdf
[x] Nevada Revised Statutes, NRS 392.040; https://www.leg.state.nv.us/NRS/NRS-392.html#NRS392Sec040
[xi] Nevada State Legislature, 2015, SB 302, As Enrolled; https://www.leg.state.nv.us/Session/78th2015/Bills/SB/SB302_EN.pdf
[xii] Editorial, Las Vegas Review-Journal, 12.17.2016; http://www.reviewjournal.com/opinion/editorials/editorial-advancing-parental-choice
[xiii] Klicka, Christopher J., Decisions of the United States Supreme Court Upholding Parental Rights as “Fundamental”, HSLDA, 10.27.03; https://www.hslda.org/docs/nche/000000/00000075.asp
[xiv] Nevada Revised Statutes – NRS 353B.850, http://www.leg.state.nv.us/NRS/NRS-353B.html#NRS353BSec850
[xvi] Nevada Revised Statutes – NRS 353B.870; http://www.leg.state.nv.us/NRS/NRS-353B.html#NRS353BSec870
[xvii] Nevada Homeschool Network, position statement, 01.18.2015; http://nevadahomeschoolnetwork.com/WP/wp-content/uploads/2016/03/Alternative-Education-Funding-Programs-NHN-Position-Statement.pdf
[xviii] Nevada Supreme Court, page 18, Schwartz v. Lopez, Case No. 69611, 09.29.16, http://nevadahomeschoolnetwork.com/WP/wp-content/uploads/2016/12/16-30306-NV-SC.Schwartz-v.-Lopez-09.29.16.pdf
[xix] Nevada Supreme Court, page 25, Schwartz v. Lopez, Case No. 69611, 09.29.2016, http://nevadahomeschoolnetwork.com/WP/wp-content/uploads/2016/12/16-30306-NV-SC.Schwartz-v.-Lopez-09.29.16.pdf
[xx] Nevada Revised Statutes, NRS 394.211; https://www.leg.state.nv.us/NRS/NRS-394.html#NRS394Sec211 and NRS 388D.020; https://www.leg.state.nv.us/NRS/NRS-388D.html#NRS388DSec020
[xxi] Nevada State Legislature, 2007, SB 404; https://www.leg.state.nv.us/Session/74th2007/Reports/history.cfm?ID=977
[xxii] Ray, Brian D., PhD, Research Facts on Homeschooling, NHERI, 03.23.2016; http://nheri.org/research/research-facts-on-homeschooling.html
[xxiii] Barry, Dr. Susan, Why Homeschoolers Don’t Want School Vouchers, Breitbart, 05.28.2015; http://www.breitbart.com/big-government/2015/05/28/why-homeschoolers-dont-want-school-vouchers/
[xxv] Whitaker, Ian, Is the ESA program dead in Nevada?, Las Vegas Sun, 11.21.2016; http://lasvegassun.com/news/2016/nov/21/is-the-esa-program-dead-in-nevada/
[xxvi] Rindels, Michelle and Mello, Felicia, Associated Press/Las Vegas Sun,11.09.2016; https://lasvegassun.com/news/2016/nov/09/blue-wave-sweeps-democrats-back-to-control-in-neva/
[xxvii] Dynarski, Mark, Report on Negative Effects of Vouchers, Brookings, 05.26.2016; https://www.brookings.edu/research/on-negative-effects-of-vouchers/
[xxviii] Robbins, Jane, New GOP Platform: The Good, the Bad, and the Very Concerning, The Pulse, 07.19.2016; http://thepulse2016.com/jane-robbins/2016/07/19/first-look-at-gop-platform/
[xxxi] Nevada Supreme Court, bottom of page 19, Schwartz v. Lopez, Case No. 69611, 09.29.2016, http://nevadahomeschoolnetwork.com/WP/wp-content/uploads/2016/12/16-30306-NV-SC.Schwartz-v.-Lopez-09.29.16.pdf
[xxxii] Schnorbus, Frank and Dragon, Barbara, Educational Choice Options in Nevada, Nevada Homeschool Network, June 2016; http://nevadahomeschoolnetwork.com/WP/wp-content/uploads/2016/03/Nevada-Parental-Choice-Options.2016.June_.pdf
[xxxv] Nicolai, Cindy, The Truth About ESAs, HSLDA Leadership Conference, September 2016, https://media.wix.com/ugd/70a8b6_01fde200e2da4403acf1991494cbbecb.pdf
[xxxvi] Klicka, Christopher J., Charter Schools: The Battle for the Soul of Homeschooling, Homeschool World, 2001; http://www.home-school.com/Articles/charter-schools-the-battle-for-the-soul-of-homeschooling.php
[xxxvii] Ray, Brian D., PhD, Despising Homeschooling: Contorting Rights, National Home Education Research Institute, 09.2016; http://archive.aweber.com/nheri2010-1/Gv6r8/h/Despising_Homeschooling_.htm