When government ignores its own laws

A dubious way around genuine education reform

By Patrick R. Gibbons
  • Tuesday, June 30, 2009

Imagine if a Nevada business decided not to pay taxes. Supporters of big government would cry that it was "not paying its fair share," and state officials would swoop down upon on the firm like vultures to a carcass. The state would devour all it could and imprison the company's management for violating the law.

But what happens when government ignores laws it creates?

On July 1, 2007 the Nevada Legislature passed SB 238 — which, as NRS 386.720, ordered Clark and Washoe counties to create "empowerment schools." This was a positive public education reform that allows schools to operate like entrepreneurial businesses, deciding how best to use their resources to provide the highest-quality service to their customers — the students.

Under the law, these new entrepreneurial schools were to "have discretion of 90 percent of the amount of money from the state financial aid and local funds that the school district apportions for the school..." The Washoe and Clark school districts were directed to transform at least 5 percent of their schools into empowerment schools. The Senate bill also required the Nevada Department of Education to write procedures to ensure compliance with the law.

To incentivize all counties, AB 627 authorized approximately $9 million for new empowerment schools. Then, a drastically weakening economy suddenly descended upon the state.

In December 2007, Gov. Jim Gibbons suggested a 4.5 percent across-the-board budget cut for education, which comprises over 50 percent of state general-fund spending. Asked how best to achieve that objective, school districts in January 2008 responded by suggesting cuts to one-time expenditures, such as funds for all-day kindergarten and empowerment schools.

Nevertheless, even though state money for the program was cut, the Clark County and Douglas County school districts both proceeded to create empowerment schools. Although not required to by state law, the Douglas County School District created one empowerment school, having overcome its earlier objections. The Washoe County School District, however, by the summer of 2009 had failed to authorize a single empowerment school. According to a spokesperson for the district, it did not proceed with the empowerment program because of the funding cuts.

Asked about its rules to ensure compliance with NRS 386.720, the Nevada Department of Education revealed that it has never written the compliance rules required by the 2007 state law. According to the office of the state superintendent, the department did not do so because the empowerment school incentive funding had been cut.

To date, NPRI has found no exemptions in or regarding NRS 386.720, allowing state agencies to ignore the law because funding was cut.

Unfortunately, this is not a new phenomenon. A 2006 Legislative Counsel Bureau compliance audit of the Nevada Department of Education notes that the department had failed to comply with state and federal laws in the past. The audit found "...weaknesses allowed non-compliance with some state and federal laws, rules, regulations and guidelines, and monitoring of certain educational programs..."

Between FY 2001 and FY 2007, said auditors, the department failed to take adequate steps to oversee proper use of approximately $390 million in legislative appropriations. Laws establishing rules for revoking teacher certifications, including teachers who had become convicted criminals, were ignored, as were laws regarding employee evaluations.

Nevada has thousands of laws, and the federal government has hundreds of thousands more. While some laws are appropriate, many are not. To be sure, compliance and ensuring fiscal responsibility can be a daunting task for state agencies given all the statutes on the books. But if Nevada government cannot follow its own rules — a pattern much, much broader than in this narrow instance — it reveals nothing other than massive arrogance and hypocrisy in the insistence on citizen compliance. And, unlike our statist rulers, we common citizens lack the government's vast financial resources and its ability to compel others by force to give us more.

The empowerment-school law was a very simple and, prospectively, positive law that holds great promise for improving the quality of education in the Silver State. The fact that major players in the state-educrat apparatus chose to ignore it speaks volumes about the existing knee-jerk resistance to genuine public education reform.

Nevada's governing officials need to explain why they feel entitled to force us to play by the rules while they repeatedly ignore them.

Patrick R. Gibbons is an education policy analyst at the Nevada Policy Research Institute.

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