Education advocates on Wednesday filed a lawsuit asking a district court to declare Nevada’s K-12 education system unconstitutional, arguing that decades of financial neglect by lawmakers on both sides of the aisle have led to a dearth of public school resources so severe that lawmakers cannot be trusted to fix it without being legally compelled through a court ruling.
That’s not a decision that will come quickly or without resistance, but if successful would become a landmark case with long-lasting impacts on public education for decades to come.
Shea v. Nevada was filed Wednesday morning in Nevada’s First Judicial District Court, located in Carson City. The educational adequacy lawsuit is being shepherded by Educate Nevada Now, a Rogers Foundation-funded policy group focused on school finance reform. The law firms Wolf, Rifkin, Shapiro Schulman & Rabkin and Holland & Hart are representing the parents and students pro bono.
The State of Nevada, Nevada Department of Education and Nevada State Board of Education are named as defendants.
Amanda Morgan, executive director of Educate Nevada Now, said the lawsuit is a response to years and years of the state pitting educational programs, initiatives and groups against one another rather than finding a way to meet the needs of every student. The analogy favored by legislators and education advocates is that of a pie — everyone is fighting for a bigger slice of a funding pie that is simply too small to feed everyone at the table.
“That ends here,” said Morgan.
Nine parents representing themselves and their 14 children are listed as plaintiffs in the lawsuit. They hail from three different counties — Clark, Washoe and White Pine — and were chosen to showcase a wide range of educational experiences around the state. They include English language learners (ELL), students with autism, students receiving free or reduced lunch (FRL) and students participating in Gifted And Talented Education (GATE).
As plaintiff Christina Backus put it during a press conference Wednesday afternoon: “Quality education shouldn’t be about luck.”
Backus recounted her experience advocating for her son as he struggled with his autism in an elementary school classroom packed with too many students and too few aides to help with special needs. Her son eventually had to be moved to another classroom, and then to an entirely different school. She has the resources to transport him to a different school, and she said she worries for those families that don’t.
The heart of the argument presented in Shea v. Nevada is that the state isn’t fulfilling specific requirements set within the Nevada State Constitution, beginning with the directive that “The legislature shall provide for a uniform system of common schools….” All students are supposed to have access to a quality education that adequately prepares them for the future after graduation, and built into that are provisions acknowledging that certain demographics of students require additional resources to be successful.
The court filing includes a laundry list of things the state has codified as required for all students. The list includes: access to laboratory equipment, school supplies, clean and safe campuses, resources for English language learners, high quality pre-kindergarten, reasonable teacher-to-student ratios and properly licensed teachers.
Shortcomings in these areas are well documented. The state has some of the biggest class sizes in the country. Clark County School District routinely starts each academic year with teacher shortages (and those teacher shortages aren’t distributed evenly across schools). The court filing notes that CCSD is facing a $6.1 billion shortfall for capital and maintenance needs through 2025, while White Pine County School District maintains over $10 million in deferred maintenance.
The White Pine district has two school buildings that are more than 100 years old and non-compliant with the Americans with Disabilities Act.
“Attempts to update the building to account for newer technology, A/C and heating have led to a patchwork of visible wires and cables covering walls. Schools struggle with adequate space for parking and are unable to implement disaster preparedness strategies. Students with limited mobility must be carried up flights of stairs due to lack of elevators or ramps,” reads the court document.
“They aren’t safe,” Morgan says flatly. “When it comes to maintenance, school districts have basically been told they’re on their own.”
The complaint notes the state offers no weighted funding for GATE, ELL and FRL students. Pilot programs — Zoom and Victory — focused on these latter two populations exist, but they are limited to a handful of schools. It’s estimated that 68 percent of ELL and 84 percent of FRL students receive no additional state funding. As for the former, funding is limited and therefore often restricted to certain grade levels.
When it comes to overall funding, the lawsuit notes the base per-pupil funding for the 2020-21 school year is $3,020 below the recommendations made by a 2018 state-commissioned study by Augenblick, Palaich and Associates.
These shortcomings manifest themselves in poor educational rankings, argues Educate Nevada Now. Less than 50 percent of students are considered proficient in math and reading in eighth grade. Proficiency among ELL and FRL students is far worse — only 5 percent of ELL students and 20 percent of FRL students are deemed proficient in math in eighth grade.
“No state can long perform at this woeful educational level and expect its citizens to sit idly by while generations of schoolchildren fall between the ever-widening cracks in the system,” concludes the filing. “From achievement scores to class sizes, from teacher quality to on-the-ground resources for student learning, Nevada has failed its schoolchildren.”
What to expect
Attorney Bradley Schrager cautioned the education adequacy lawsuit will be “a lengthy process” that will likely play out over multiple years, legislative sessions and election cycles. He emphasized the suit is not intended to pressure any specific lawmakers or elections and is not related to ballot initiatives or existing education reform efforts.
“I’d like to have filed this 10 years ago,” said Schrager when asked about the timing of the filing.
Schrager said that in states where similar lawsuits have been successful, the rulings have brought “renewed energy” to the topic of adequate resources and funding. The lawsuit doesn’t assign any specific dollar amount necessary for funding, he said. Instead, it asks the court to declare that education is a basic right and the current funding system is insufficient, and instruct the state to fix it.
Morgan echoed Schrager, telling the Current the goals of the lawsuit are broader — and perhaps more permanent — than the goals of other education advocacy efforts.
“I cannot foresee a situation where this lawsuit isn’t needed,” she said.
Morgan added that a favorable ruling would set parameters the state would have an obligation to meet. The state would be compelled to find the funding and resources to meet those obligations, and those parameters wouldn’t change even if the political makeup of state government alternates wildly between blue waves and red waves in the future.
Currently, Democrats control the state Senate and Assembly, as well as the governorship, but they fall short of a super majority in both houses needed to raise taxes without the support of some Republican lawmakers. Even if they did have a supermajority, it’s unclear whether Nevada Democrats would support the type of revenue hike advocates say is needed to properly fund education.
During the 2019 Legislative Session, lawmakers created an 11-person Commission on School Funding focused on revamping the almost universally despised funding formula currently used by the state. Morgan said that while the commission is comprised of skilled people, they will ultimately only make recommendations to the 2021 Legislature — and recommendations have been routinely pushed aside by lawmakers before.
“They aren’t setting targets for things,” adds Morgan.
Meanwhile, the Clark County Education Association, which represents teachers within CCSD, is moving forward with two ballot petitions — one to raise the gaming tax, one to raise sales tax. If the union receives enough signatures for the petition, the questions would appear on the 2022 ballot. The initiatives together would bring in an additional $1.4 billion annually for education. Both will meet heavy resistance.
How it’s played out elsewhere
While one has not been attempted here in Nevada until now, education adequacy lawsuits have been filed in almost all parts of the country. Until Wednesday, Nevada was one of only three states where such a lawsuit hadn’t been filed. Hawaii and Utah are the other two.
According to the Center for Educational Equity at Teachers College, plaintiffs have won almost 60 percent of adequacy cases since 1989, but the success rate varies significantly if you compare pre-recession to post-recession. Pre-recession, more than two-thirds of cases favored plaintiffs. From 2009 to 2017, just over half of final decisions favored the defendants, as courts shied from forcing state legislators to better fund education.
The Center for Educational Equity found that in cases where the states prevailed, the legal decision was based on the question of whether the judicial branch should review legislative branch decisions, rather than a review of the facts regarding that state’s funding of education.
Advocates in New Mexico — a state with similar demographics and educational issues — filed an education adequacy lawsuit in 2014 and received a landmark win in July 2018. According to the Sante Fe New Mexican, the judge wrote in a 76-page decision that the state “violated the rights of at-risk students by failing to provide them with a uniform statewide system of free public schools sufficient for their education.”
After the ruling, New Mexico lawmakers injected nearly half a billion dollars of additional funding annually into its education system, but according to the Las Cruces Sun, the plaintiffs returned to court late last year to argue the new money was being used for mandated teacher salary increases and not addressing the at-risk students it was intended to assist.