Law prof raises questions about who can run the community college system

In a new paper, a law professor and his son, a Democratic activist, raise questions about the age-old tug o' war between the Legislature and the regents over who runs higher ed.

The paper (attached here)  by Tom and Justin McAffee raises questions about the governance of the community colleges, not explicitly laid out in the Constitution, and about conflicts between the attorney general and the Legislative Counsel Bureau, which have occurred in the past and often have to be resolved in court.

The conclusion:

As previously noted, it has become commonplace for legal commentators to cite to a Nevada attorney general’s opinion[1] as though it were established law,[2] even though it erroneously takes the position that schools teaching courses at the “university level” may not be constitutionally established outside of the control of the Board of Regents, even by the legislature. As future bills are considered that would propose changing the structure of higher education in Nevada, there should be no question about the legal authority of the Legislature to establish institutions of higher education and governing boards outside of the control of the University Board of Regents.

Education in Nevada has such broad reaching consequences for the state, especially the economy, that little else receives as much attention from the State Legislature.[3]  That is precisely why the structure of higher education, like all broad questions of public policy,  was established to be determined by the Nevada Legislature.  Indeed, the general mandate in Article 11, Section 1 of the Nevada Constitution explicitly states that the “legislature shall encourage by all suitable means the promotion of intellectual, literary, scientific, mining, agricultural, and moral improvements ….”   If creating a separate community college system is a suitable means to accomplish these goals, the legislative mandate is clear.

Indeed, the Legislature was constitutionally mandated to “provide for the establishment of a State University which shall embrace departments for Agriculture, Mechanic Arts, and Mining to be controlled by a Board of Regents whose duties shall be prescribed by Law.”[4]  This specific requirement to create a Board of Regents to control the University no more restricts the Legislature from creating other universities and boards than the specific requirement that the University include “Agriculture, Mechanic Arts, and Mining” in its curriculum prohibits it from also including political science, foreign languages or any other areas of study it sees fit.

Though the Nevada Constitution does not need to expressly grant any specific power to the Legislature for anything because the Legislature has plenary powers,[5] the Constitution still expressly grants that the Legislature "shall have power to [establish] Normal schools, and such different grades of schools, from the primary department to the University, as in their discretion they may deem necessary.”[6]  The presence of  phrases like “as in their discretion” and “all suitable means” in the provisions of the Nevada Constitution’s section on education, Section 11, was by no means accidental. Emphasizing the Legislature’s discretion would help ensure that more specific provisions were not construed to deny generally open-ended powers intended for the Legislature.  In the final analysis, the primary power of the Nevada Legislature is their discretion in all things “except when powers are specifically denied it by the Federal Constitution or the State Constitution.”[7]