No tax hikes? It might be time to sue

This legislative session will be one of the most challenging in our history. Legislators and the governor should prepare for this challenge by reconsidering their oath to uphold the Nevada Constitution.

Nevadans are rightly proud of their state constitution, which arguably provides individual Nevada citizens with the right to an adequate education. The Nevada Supreme Court has not yet arrived at this interpretation because it has not had occasion to decide the issue. If this question were to be before the state Supreme Court, this is how the argument would work.

Article 1 of the Nevada Constitution protects the fundamental liberties of Nevada citizens. These include fundamental rights to be "free and equal" and "enjoy life and liberty." The framers who drafted and ratified the constitution believed in limited government. Government functions best when its powers and responsibilities are clearly defined and narrowly circumscribed. A government with limited powers is one that will not become so expansive that it is invasive and deprives Nevada citizens of their liberties.

In such a constitution of limited powers, it is significant that Article XI lays out in great detail the duties of the Legislature to provide for education.

First, under Section 1, the Legislature is charged with the solemn duty to "encourage by all suitable means the promotion of intellectual, literary, scientific, mining, mechanical, agricultural, and moral improvements" of its citizens. As stated in Sections 2 and 4, the Legislature is to provide for these intellectual and moral improvements by establishing a "uniform" K-12 system of "common schools" and a public university.

Finally, in Section 6, the Legislature is charged with funding education.

The constitutional debates from early times reflect that the Nevada founders believed that establishing an educational system for Nevada citizens was one of the top responsibilities of state government. The 2003 state Supreme Court decision, Guinn v. Legislature, unpopular for other reasons and since overturned, affirmed that the Legislature's obligation to fund education is among the most important responsibilities that it has under the state Constitution.

There are two key arguments as to why funding an adequate education is a key responsibility under the Nevada Constitution. Brown v. Board of Education is a modern civil rights Supreme Court case that eloquently explains why "education is perhaps the most important function of state and local government." First and foremost, education is "the foundation of good citizenship." The Nevada Constitution also reflects the belief that public education "moral[ly]" and "intellectual[ly]" can improve the civic nature of Nevada citizens.

Second, at a utilitarian level, Brown v. Board of Education explains, "in these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity to an education."

Education is even more important in this era of ubiquitous digital technology. Educated citizens are productive citizens, who will be able to achieve their full work-force potential and who will become contributing taxpayers.

There is a high correlation between one's success (measured monetarily) and one's education. In 2002, the average high school dropout earned $18,900, high school graduates earned $25,900; college graduates earned $45,000; and those holding professional degrees earned close to $100,000 per year. Furthermore, students who drop out of high school are much more likely to become wards of the state and need state government support services.

The next question is what level of funding will provide the education that Nevadans are due under their constitution. The Nevada Constitution leaves funding to the Legislature's discretion. Article XI, Section 1, however, also states that the Legislature is to provide Nevadans with education that is "suitable," or adequate. More generally, the constitution also provides the right of equality to its citizens.

State courts in other jurisdictions have been struggling with what the requirements of suitability, or adequacy, and equality might mean. The North Carolina Supreme Court recently stated that the "basic education" that the state must provide includes "sufficient academic and vocational skills to enable a student to successfully engage in a post-secondary education or vocational training ... and sufficient ... skills to enable the student to compete on an equal basis with others in formal education or gainful employment in contemporary society."

This interpretation makes sense. Education is a good that citizens need in order to be in a position to compete for the "good life." A reasonable and persuasive interpretation is that funding which complies with the constitutional obligation to provide a suitable or adequate education is one that provides Nevada citizens with the opportunity to have access to higher education, or vocational training, so they can be productive citizens.

The state's responsibility for an adequate education should include the obligation of providing fair and equitable opportunities for all citizens, no matter one's particular situation. This is what is meant by the right of equality of all citizens.

Not all children start from the same position, and in Nevada we encounter great disparities. One in 10 children in the Las Vegas Valley lives in poverty, according to a recent state report. Children who lack English language skills make up one in six children who attend Clark County schools. Of the top 10 Nevada high schools labeled as "high school dropout factories" by a 2008 Johns Hopkins Institute study, eight are in Clark County -- all eight have a high proportion of students with federally subsidized school lunches and have substantial minority student populations.

Nevada's funding formula allocates education dollars at one of the lowest levels in the country for a growth state, according to a recent Berkeley study. Nevada's funding formula does not take into account the challenges that urban school districts face with diverse, low income and English-learner student populations. Bluntly put, more effort is required to give these students the same opportunities that middle-class children are blessed with enjoying in their home environments.

The Nevada Constitution should be interpreted as requiring that the state has the burden of ensuring that all of its citizens have access to comparable opportunities for a quality education. It is difficult to see how this equality requirement of the constitution can be met with an inflexible funding formula arrived at before Nevada became a global player, and had experienced explosive growth.

Our state Supreme Court has not yet had a chance to decide on important constitutional questions that affect our children. But legislators and the governor do not have to wait for a Nevada Supreme Court decision in order to assess what their constitutional duties will be this legislative session. Clearly, the Legislature and the governor should balance the budget. Also, there is an obligation to provide for education adequately.

Will we need litigation to make this point, or will our Legislature and governor do right by Nevada's children?

I hope we will see leadership that honors education the way that our state constitution's founders meant for education to be honored.

Sylvia R. Lazos is the Justice Myron Leavitt professor of constitutional law at the William S. Boyd School of Law at the University of Nevada, Las Vegas.