The Indy Explains: Question 1, a measure that would strike the Board of Regents from the Constitution
Question 1: The Nevada Higher Education Reform, Accountability and Oversight Amendment
Formal name: Assembly Joint Resolution No. 5 (79th Session)
Type of measure: Legislatively referred constitutional amendment
Groups organized: Yes on 1 for Higher Education
Other groups in favor: Las Vegas Metro Chamber of Commerce, Nevada AFL-CIO
Summary of what it does: Question 1 would remove language including the Board of Regents from Article 11 of the Nevada Constitution, instead requiring the Legislature to provide by law for the “governance, control, and management and the reasonable protection of individual academic freedom.” The amendment would also clarify certain legal provisions related to money provided by federal land grant funds provided as part of the 1862 Morrill Land Grant College Act, in part by updating the state’s legal language to match congressional amendments made in the time since and by removing references to the Board of Regents.
What other states have done: Governance structures for higher education systems vary widely from state to state, but Nevada is among 29 states that utilize a single administrative board tasked with overseeing all higher education institutions across the state. Among those states, Nevada is the only one that elects all its regents through a general election. Most others, in part or in full, rely on appointments by their respective governors or legislatures.
Arguments for passing Question 1: Proponents of Question 1 — a broad coalition of ex-legislators, business interests and some students and faculty — have claimed the measure is a necessary reform that will provide greater legislative oversight, and therefore greater accountability, over the Board of Regents.
Formally citing legal cases from 1948 and 1981 and informally pointing to incidents such as a funding formula controversy under former Chancellor Dan Klaich, those in favor of Question 1 charge that past regents or chancellors too often use their “antiquated” constitutional status as a legal shield for bad behavior.
“The regents have not made their case of why they think they’re better at holding themselves accountable than the rest of us,” Elliot Anderson, a former assemblyman and the author of AJR5, said. “Because in the rest of American government, no one gets this special protection from accountability — only the regents do.”
In testifying for the measure in 2019, Democratic Sen. Joyce Woodhouse told lawmakers that the change was a direct response to “events of the past several years,” including efforts by NSHE to “control, alter or misrepresent” information presented to the Legislature.
Though not explicit, Woodhouse’s testimony is a likely reference to an incident in 2012 in which Klaich and other higher education officials allegedly drafted a letter to legislators under a consultant’s letterhead, an act that lawmakers both then and now say was a deliberate attempt to mislead and obfuscate the high-stakes process of revamping the system’s byzantine funding formula.
Originally revealed through a public records request by the Las Vegas Review-Journal in 2016, Klaich later denied any wrongdoing and said emails construed by the RJ as malicious were intended as jokes. In a written statement later delivered to regents before his resignation, Klaich said that, though he was involved in drafting the letter, the final language was still approved by consultants before being sent to the legislative committee in question.
Anderson also stressed that the measure would not put the Legislature “in control,” of higher education — something implied by some regents during a board meeting in July. He said that, under a regulatory scheme created through Question 1, Regents would still handle regular administration of the higher education system, while the Legislature instead ensures the board remains subject to the “checks and balances and the law just like every other agency.”
“You know, the Legislature is imperfect and the Board of Regents is imperfect,” Anderson said. “And the whole idea is that imperfect, by the government, is supposed to be able to hold each other accountable and check and balance each other.”
Also criticizing the elected nature of the Board of Regents and a lack of nimbleness and adaptability, the Yes on 1 campaign has claimed that the amendment will modernize the higher education system and “help us save taxpayer dollars from waste,” specifically taking aim at a $26 million administrative budget and a six-figure salary for new Chancellor Melody Rose.
However, that budget figure is likely misleading, according to NSHE administrators, as it includes nearly $19 million budgeted for the so-called “system computing center,” which covers human resources, accounting and other software used by all NSHE institutions.
There is also the issue — or in the view of some Yes-on-1 proponents, the non-issue — of what comes next should voters ultimately approve the amendment.
The ballot question proposes no policy changes outside pulling the board from the Constitution. But Chet Burton, former NSHE CFO and former president of Western Nevada College, argued the lack of specificity provided flexibility on those specifics later down the line, adding that a vote against Question 1 was “approving the status quo.”
“A lot of people don't know what the final product will look like,” Burton said. “But I think that at least it gives us the opportunity to put together a working group and bring the best minds together and look at how other states handle it.”
Arguments against passing Question 1: Though there are no formal or organized opponents to Question 1, several regents and former Chancellor Thom Reilly vocally opposed the measure as it worked its way through the Legislature. In public testimony and in interviews with The Nevada Independent, these critics say Question 1 does little in the way of furthering educational outcomes for students or otherwise improving higher education governance in the state.
“How will this make the system better for students?” Reilly asked The Nevada Independent. “How will that advance our graduation rates and retention rates in our research portfolio in our workforce force output? No one has been able to answer that. So if we're going to do a pretty significant change in governance, there should be a better articulation about how that's going to advance the system.”
Reilly also cast doubt on the prospect that placing higher education in the realm of any other state agency would make it more efficient or “nimble,” calling it instead “extremely bureaucratic and onerous.” Pointing specifically to the “multiple levels of bureaucracy” required by the Legislature’s Interim Finance Committee for state agencies, he said specifically that the direct distribution of coronavirus relief dollars earlier this year by NSHE “can never happen in the state” if the system operated like an agency.
Regent Trevor Hayes, likewise, called the measure a “classic example of a solution in search of a problem” and Regent Laura Perkins raised doubts about the lack of any clear definition for policies that could result from Question 1’s passage.
“I see it as trying to build the plane while you’re flying it,” Perkins said. “There’s no numbers or positive proof that the system that may or may not come out of this is better than the system that we have now.”
Opponents have also claimed that Question 1 represents a legal backdoor that would allow the Legislature to do away — either in part or in full — with elected regents.
Regent Jason Geddes, among the longest-serving regents on the board, pointed to SB354 — a failed 2019 bill that would have reduced the number of regents to nine, including four gubernatorial appointees — as evidence of a broader legislative end-game.
In his view, Geddes said that the elected nature of regents under the current constitutional structure — one that he believes is ultimately responsive to constituents — could not be recreated under the framework laid out by SB354, or theoretically allowed by Question 1.
“Right now there's 13 of us, we represent just shy of 300,000 people,” Geddes said. “And we drop it down to nine, and we actually would only have five representing the entire populace of the state — it's pretty much a congressional district for a part time, $80-a-[meeting] job. It just gets difficult to represent that many people kind of over the years.”
Though SB354 was passed in the Senate by a 15-6 margin, the measure was controversial and found little support in the Assembly, where it died in committee.
Even now, not all proponents of Question 1 agree on the question of an appointed board. That includes Anderson, who worked to quash that bill and called the issue a “separate question” and a “kind of a fiction that is presented for the benefit of the public.”
Though no faculty group has as-yet taken a formal position on Question 1, some Nevada faculty have vocalized past concerns that the amendment may not adequately protect academic freedom.
In a letter sent to lawmakers during deliberations on AJR5 in 2019, the Nevada Faculty Alliance listed at least eight instances in which political pressure was used to influence the nature of appointed higher education governing bodies, including a 2016 move by Kentucky Gov. Matt Bevin to oust trustees and the president at the University of Louisville.
But some faculty proponents have otherwise downplayed the issue, countering that Question 1 would, to the contrary, expand protections for academic freedom through placing such protections directly into the state Constitution.
How did Question 1 qualify for the ballot? As a legislatively referred constitutional amendment, Question 1 was overwhelmingly — though not unanimously — approved by two successive legislative sessions as Assembly Joint Resolution 5. First introduced in 2017, AJR5 was passed 38-4 in the Assembly and 18-2 in the Senate. In its second run through the Legislature in 2019, the measure was approved by margins of 36-5 in the Assembly and 20-0 in the Senate.
Primary funders: A PAC formed in support of Question 1, Nevadans for a Higher Quality Education, reported raising $115,500 through the second quarter of 2020. Nearly all of that money, $105,000, came in two contributions from the Council for a Better Nevada, a political non-profit helmed by Maureen Schafer, the former chief of staff for the UNLV Medical School. First formed in 2006, the Council for a Better Nevada in part funded a 2014 effort to create a Nevada Court of Appeals and the 2016 gun background checks initiative.
The remainder of the PAC’s fundraising came from a $10,000 contribution from the Las Vegas Metro Chamber of Commerce and $500 from Republican state Sen. Keith Pickard’s campaign committee.
Through the second quarter, the PAC reported spending $87,500, of which nearly half — $40,000 — went to the Mellman Group, a Washington, D.C.-based pollster with a long history of polling Nevada races. (The firm has also done polling for The Nevada Independent.) The PAC also spent another $30,000 on California-based firm Winner and Mandabach, which advertises itself as a specialist in the realm of ballot-measure campaigns.
Financial impact: Cannot be determined. Because Question 1 would likely lead to legislative changes to NSHE and its administrative structure, an analysis by the state could not determine a financial impact of the measure without knowing what, precisely, those changes would entail.
Status: The measure was approved by legislators in both the 2017 and 2019 legislative sessions, leaving November’s vote as the only hurdle remaining before the amendment would take effect.
For more breakdowns of ballot measures, laws or other complex topics, check out other Indy explainers here.
Correction, 9/7/20 at 11:59 a.m. — A quote from Regent Jason Geddes originally misstated the compensation for regents as "$80-a-day." Regents actually receive $80 per meeting, with four quarterly meetings scheduled per year.
Updated, 9/9/20 at 10:32 a.m. — This story was updated to include an endorsement of Question 1 by the Nevada AFL-CIO announced on Wednesday, Sept. 9.