Policy Institutes

In a landmark decision, the Supreme Court of Nevada today upheld the constitutionality of the nation’s most expansive educational choice law. However, the court ruled that the funding mechanism the legislature adopted is unconstitutional. If the legislature creates a new funding mechanism–as it could and should in a special session–then the ESA program could be implemented right away.

Enacted in 2015, Nevada’s education savings account (ESA) policy was originally scheduled to launch at the beginning of this year, but it immediately drew two separate legal challenges from the government schooling establishment and the ACLU and its allies. Nevada’s ESA provides students with $5,100 per year (plus an additional $600 for low-income students or students with special needs) to use for a wide variety of approved educational expenditures, including private school tuition, tutoring, text books, online courses, homeschool curricula, and more. Families can also roll over unspent funds from year to year. As the Heritage Foundation’s Lindsey Burke and I have explained, the ability to customize a child’s education and save funds for later are significant improvements over school vouchers:

ESAs offer several key advantages over traditional school-choice programs. Because families can spend ESA funds at multiple providers and can save unspent funds for later, ESAs incentivize families to economize and maximize the value of each dollar spent, in a manner similar to the way they would spend their own money. ESAs also create incentives for education providers to unbundle services and products to better meet students’ individual learning needs. 

Of the five existing ESA programs, Nevada’s is the most expansive. Florida, Mississippi, and Tennessee restrict their ESAs to students with special needs. Arizona originally restricted ESA eligibility to students with special needs, but has since included foster children, children of active-duty military personnel, students assigned to district schools rated D or F, and children living in Native American reservations. In Nevada, all students who attended a public school for at least 100 days in the previous academic year are eligible. 

In two separate lawsuits, opponents of educational choice alleged that Nevada’s ESA violated the state constitution’s mandate that the state provide a “uniform system of common schools” (Article 11, Section 2), its prohibition against using public funds for sectarian purposes (Article 11, Section 6), and a clause requiring the state to appropriate funds to operate the district schools before any other appropriation is enacted for the biennium (Article 11, Section 10). The court found that the ESA was constitutional under the first two constitutional provisions, but the way it was funded violated the third.

“Uniform” Does Not Mean “Exclusive” 

The anti-choice plaintiffs alleged that the state constitution’s mandate that the state provide a “uniform system of common schools” means that the state may only fund that system, and not an “alternative” system that includes “non-common, non-uniform private schools and home-based schooling.” Essentially, they argued that “uniform” meant “exclusive.” The court disagreed. The plain language of the term “uniform” refers to uniformity within the system of common schools. Such schools must be free-of-charge, free of sectarian instruction, open at least six months a year, and so on. The ESA program does not change that.

The plaintiffs took great pains to explain away the previous provision of the state constitution, which explicitly authorized the legislature to “encourage” education “by all suitable means.” Although the plaintiffs argued that the term “all suitable means” is somehow limited by the “uniformity” clause, the court ruled that the two clauses operate independently. Furthermore, the court held that the expression “by all suitable means” clearly “reflects the framers’ intent to confer broad discretion on the Legislature in fulfilling its duty” to promote education. The creation of an ESA program falls within this discretion. 

ESA Funds Belong to Parents, Not the State

The plaintiffs further alleged that the ESA violated the state constitution’s Blaine Amendment, which states: “No public funds of any kind of character whatever […] shall be used for sectarian purpose.” Although even the plaintiffs conceded that the ESA has a secular purpose and that parents may expend all of their ESA funds on secular education, they contended that the potential that parents might use ESA funds to pay tuition at a religious school or purchase religious homeschool materials was a violation of the Blaine Amendment. The court disagreed:

Once the public funds are deposited into an education savings account, the funds are no longer “public funds” but are instead the private funds of the individual parent who established the account. 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. Any decision by the parent to use the funds in his or her account to pay tuition at a religious school does not involve the use of “public funds” and thus does not implicate Section 10.

This is consistent with how the courts treat other transfers of public funds to individual citizens. A person using food stamps for a religious feast, hosting regular Bible studies at a subsidized apartment, or spending Medicaid funds at a Catholic hospital with a crucifix in every room and priests on the staff likewise do not violate the U.S. or state constitutions. The mere fact that the state places some restrictions on how those funds may be spent does not, as the plaintiffs alleged, mean that they are still “public funds.” As the court ruled, “That the funds may be used by the parents only for authorized educational expenses does not alter the fact that the funds belong to the parents.”

Finding a New Funding Mechanism

Education savings accounts are constitutional. Nevertheless, the court ruled that the way the legislature funded them is not. In its current form, there is no limit to the number of ESAs that the state might issue because it depends on the number of eligible students who apply for an account. The legislature did not explicitly create a separate appropriation for the ESAs, but rather diverted the funding that the state would otherwise have spent on those students had they enrolled in a district school. This creates a Catch-22. If the court were to find that the ESA funds do constitute a separate appropriation, then it runs afoul of the constitutional mandate that the legislature fund the district school system first because the legislature passed the ESA bill before the district school funding bill. However, if it is not a separate appropriation (as the court eventually held), then the legislature did not actually appropriate funds for the ESA because the district school funding bill makes no mention of them. The state treasury therefore has no authority to use the funds appropriated in the district school funding bill to fund the ESAs.

Although the Nevada Supreme Court issued an injunction against implementing the ESA, this decision gives supporters of educational choice more reason to celebrate than not. If funded properly, ESAs are constitutional in Nevada. Now all the legislature needs to do is hold a special session to make that happen.

A recent randomized controlled trial found that the number of complaints against police fell dramatically after officers were outfitted with body cameras. It is the latest piece of research suggesting that police body cameras have a positive effect on police-citizen interactions. 

The study, headed by the University of Cambridge’s Institute of Criminology, studied complaints against police in seven sites in two countries. The departments involved in the study were in areas such as the English Midlands, Cambridgeshire, California, and Northern Ireland. Researchers examined 4,264 officer shifts over roughly 1.5 million hours. In the 12 months before the trial began there were 1,539 complaints filed against police in the seven sites. After 12 months of taking part in the trial there were 113 complaints, a reduction of 93%.

Officers involved in the study were told to adhere to two policies that are not required by many departments: 1) officers wearing body cameras “had to keep the camera on during their entire shift,” and 2) those same officers had to “inform members of the public, during any encounter, that they were wearing a camera.”

The study’s findings are similar to an often-mentioned trial that took place in Rialto, California, which also found that the outfitting of officers with body cameras was followed by a significant reduction (87.5%) in complaints. 

Speaking about the most recent study, Cambridge University’s Barak Ariel, who oversaw the Rialto trial, said, “I cannot think of any [other] single intervention in the history of policing that dramatically changed the way that officers behave, the way that suspects behave, and the way they interact with each other.” 

Interestingly, the researchers found that complaints fell for officers who weren’t wearing body cameras as well as those who did. According to the researchers this may be because of “contagious accountability”:

We argue that that BWCs affect entire police departments through a process we label contagious accountability. Perhaps naively, we find it difficult to consider alternatives to the treatment effect beyond the panopticonic observer effect when the reduction in complaints is by nearly 100%. Whatever the precise mechanism of the deterrence effect of being watched and, by implication, accountability, all officers in the departments were acutely aware of being observed more closely, with an enhanced transparency apparatus that has never been seen before in day-to-day policing operations. Everyone was affected by it, even when the cameras were not in use, and collectively everyone in the department(s) attracted fewer complaints.

As the researchers note, this “contagious accountability” effect comes with some caveats:

There is, however, a caveat associated with this conclusion, which is important for future experiments on BWCs. It is not the camera device alone that caused the contagious accountability, but rather a two-stage process. First, the treatment effect incorporated the camera as well as a warning at the beginning of every interaction that the encounter was being videotaped. We urge practitioners to acknowledge that the verbal warning, which our protocol dictated should be announced as soon as possible when engaging with members of the public, is a quintessential component of the treatment effect. It primed both parties that a civilized manner was required and served as a nudge to enhance the participants’ awareness of being observed. Without the warning, the effect might easily have been reduced or failed to materialize.

The second element to the process is the need for affirmation that the videotaped footage can be used. People may be aware of CCTV or bystanders filming the encounter but still conduct themselves inappropriately, believing the camera to either not be recording or not monitoring their demeanor. Without the actualization of the warning, transgressors may be quick to assume that the threat of apprehension and risk of sanctioning are not real. Therefore, the fact that the officially collated, recorded footage can be used against the participants moves this intervention from being a “toothless policy” (Ariel, 2012, p. 57) into an effective technological solution. 

Although the recent study and the Rialto study did reveal encouraging findings, not all cities have seen such dramatic falls in complaints following body camera deployment. Nonetheless, the recent latest findings ought to encourage citizens and law enforcement officials alike to support police body cameras. Body cameras can, with the appropriate policies enforced, provide some much-needed increase in transparency and accountability in law enforcement while also helping to exculpate officers falsely accused of wrongdoing. 

Throughout his campaign, Donald Trump has been warning against accepting Syrian refugees. Last year, he said of refugees, “They’re all men. You look at it. There are so few women and there are so few children. And not only are they men, they’re young men.” We showed at the time that this claim was inaccurate, but with the fiscal year closing tomorrow, we have the information necessary to test it as a prediction—and yet no matter how you look at it, it’s unequivocally false.

Figure 1 shows how the State Department groups the ages of the 12,500 Syrians that it has resettled this year. As can be seen, the breakdown skews heavily toward children. In fact, half of all Syrian refugees in the United States are 13 years old or younger. This demonstrates that the flow is overwhelmingly families with small children.

Figure 1: Ages of Syrian Refugees in FY2016


Source: State Department

As Figure 2 shows, nearly three quarters of the Syrian refugee flow is women and young children under the age of 14. Nearly 90 percent of Syrian refugees who came this year were outside of the “young men” demographic—men ages 14 to 30. Donald Trump is simply confused.

Figure 2: Age and Gender Distribution of Syrian Refugees FY 2016


Source: State Department

The United States has a history of accepting refugees from war-torn areas. We shouldn’t allow inaccuracies about the threats posed by refugees to dissuade us from continuing in that tradition.

Ten days ago the New York Times reported that Hillary Clinton’s campaign would soon take aim at the campaign of Libertarian candidate Gary Johnson, who had pulled close to Clinton with younger voters in some polls. Within 24 hours there began a wave of anti-Johnson commentary from left-leaning figures and outlets who had previously had little to say about the former New Mexico governor and his candidacy. The office of former Massachusetts Gov. Bill Weld, Johnson’s running mate, was “inundated” with dozens of phone calls demanding that he drop out and endorse Hillary – in a Boston radio appearance, Weld said he had an idea where that viral outbreak had originated – and Carl Bernstein even put out a story on cable TV that Weld was thinking of pulling out, which the campaign had to spend a day denying.  Nor has the effort flagged: “Democrats target Libertarian ticket,” The Hill reported yesterday, noting that everyone from Sen. Bernie Sanders to billionaire Tom Steyer were now on message against casting a protest vote in the election.

When the Times ran its report on Sept. 16, I dashed off this response, which I’ll publish here since it didn’t make it into the paper’s letters column:

To the editor:

According to your report, advisers to Hillary Clinton are “alarmed by the drift of young voters toward the third-party candidates,” in particular Libertarian Party nominee Gov. Gary Johnson, who was within two points of overtaking Mrs. Clinton for first place among voters 18-34 in the most recent Quinnipiac Poll. They are plotting counter-strategy to appeal to these voters.

If Mrs. Clinton desires to poach voters from Gary Johnson, she could always try to champion individual liberty, honest and efficient administration, and low-hubris leadership that is realistic and humble about what government can do. Yet the article contains few indications that Mrs. Clinton’s advisers grasp these sources of Gov. Johnson’s appeal.

Should Mrs. Clinton wish to make a direct appeal to Gov. Johnson’s voters, she might also offer to debate him.

Yours etc. – Walter Olson

I might have added that Mrs. Clinton could pull a two-fer and poach voters from both Johnson and Green candidate Jill Stein by recognizing the dangers of omnipotent government surveillance and military overreach. I know, crazy talk. But I can dream, can’t I?

A new Housing Policy Toolkit from the White House admits that “local barriers to housing development have intensified,” which “has reduced the ability of many housing markets to respond to growing demand.” The toolkit, however, advocates tearing down only some of the barriers, and not necessarily the ones that will work to make housing more affordable.

“Sunbelt cities with more permeable boundaries have enjoyed outsized growth by allowing sprawl to meet their need for adequate housing supply,” says the toolkit. “Space constrained cities can achieve similar gains, however, by building up with infill.” Yet this ignores the fact that there are no cities in America that are “space constrained” except as a result of government constraints. Even cities in Hawaii and tiny Rhode Island have plenty of space around them–except that government planners and regulators won’t let that space be developed.

Instead of relaxing artificial constraints on horizontal development, the toolkit advocates imposing even tighter constraints on existing development in order to force denser housing. The tools the paper supports include taxing vacant land at high rates in order to force development; “enacting high-density and multifamily zoning,” meaning minimum density zoning; using density bonuses; and allowing accessory dwelling units. All of these things serve to increase the density of existing neighborhoods, which increases congestion and–if new infrastructure must be built to serve the increased density–urban-service costs.

Urban areas with regional growth constraints suffered a housing bubble in the mid-2000s and are seeing housing prices rise again, making housing unaffordable. Source: Federal Housing Finance Agency home price index, all transactions.

Developers learned more than a century ago that people will pay a premium to know that the neighborhood they live in will not get denser. Even before zoning, developers used restrictive covenants to limit density because they knew people would pay higher prices for lots with such covenants. When zoning was introduced to do the same thing, many neighborhoods were built without such covenants, but that doesn’t mean the people in those neighborhoods will be happy to see four- and five-story buildings pop up among their single-family homes.

Urban areas with few regional growth constraints see only moderate changes in housing prices over time and still have plenty of affordable housing.

Planners argue the market has changed and more people want denser development. This is belied by the toolkit, which also supports the use of property tax abatements and value capture incentives (i.e., tax-increment financing) to promote higher densities. If there really were a market for higher densities, such subsidies would not be necessary.

If there really is a market for higher densities, then developers should be allowed to build such densities in areas that are not already established low-density neighborhoods. But developers should also be allowed to build low-density neighborhoods at the urban fringe to meet the demand for that kind of development. Instead, state and local planning rules in California, Florida, Hawaii, Oregon, Washington, and most New England states have essentially made such low-density developments illegal.

Moreover, there is little reason to believe that “building up with infill” will make cities more affordable. Artificial constraints on urban growth make land many times more expensive than in unconstrained areas. Mid-rise and high-rise housing costs more to build per square foot than low-rise housing.

Increasing density generally correlates with decreasing housing affordability. Source: 2010 census.

No matter how often urban planners chant, “grow up, not out,” the fact is that no urban area in the nation has ever made housing more affordable by increasing its density. In fact, as the chart above shows, there is a clear correlation between density and housing unaffordability.

The urban areas that have been increasing their densities through artificial growth constraints are precisely the ones that are having affordability problems. For example, from 1970 to 2010 the density of the San Francisco-Oakland urban area grew by 43 percent while its median home value-to-median family income ratio (a standard measure of housing affordability) grew from 2.2 to 7.1. Portland’s density grew by 14 percent and its value-to-income ratio grew from 1.6 to 3.9. Honolulu’s density grew by 23 percent and its value-to-income ratio grew from 3.2 to 6.6. Growing up has made these regions less affordable, not more.

Ultimately, what is wrong with the White House toolkit is that it is focused on local zoning which it should be focused on regional growth management. If there are no regional growth constraints, local zoning won’t make housing more expensive because developers can always build in unrestricted areas. Dallas has zoning; Houston doesn’t, yet in 2014 both had value-to-income ratios of 2.4. Only regional growth constraints make housing expensive. Every major city in America except Houston has local zoning, yet only those cities that have growth constraints have become unaffordable.

The real danger is that the White House’s policies will be imposed, via the Department of Housing and Urban Development, on areas that have few regional growth constraints today. The increased regulation advocated by the White House will make those areas less affordable, not more, while it won’t do anything at all for areas that already have lots of growth constraints.

The White House toolkit calls its proposals “smart housing regulation.” Truly smart regulation would rely on policies that work, not policies that only work in the fantasies of urban planners. The policies that do work would better be described as “smart land-use deregulation,” as they involve dramatically reducing constraints in unincorporated areas. Until that happens, housing will continue to become less affordable in constrained areas.