When Nevada became a state in 1864, its founders had to comply with a federal act passed two years earlier. The Morrill Land Grant Act of 1862 required that each state establish a land-grant college. The act resulted in the creation of more than 70 land-grant institutions across the country. Nevada complied by embedding a directive in its state constitution requiring a university system governed by a board of regents. The board governs the state’s higher education system and the system’s chancellor.

More than 150 years later, Nevadans will vote on whether to remove the Nevada System of Higher Education’s Board of Regents from the constitution.

History 101

The Board of Regents’ constitutional status has resulted in conflicts between it and the state legislature over power and autonomy. NSHE has gone so far as claiming legal immunity from legislative oversight and accountability measures. The board has threatened litigation when legislators have tried to reform higher education. It’s a battle that’s been escalating since the Great Recession more than a decade ago—and one that’s been fueled by scandals within Nevada’s higher education system. 

When a new funding formula for higher education was implemented in 2013, the share of NSHE’s operational budget decreased for every institution besides one—the University of Nevada, Reno. Reporting by Bethany Barnes of the Las Vegas Review-Journal revealed that in working toward approval of the new model, NSHE officials ghost-wrote a memo on a consultant’s letterhead, answering questions from a legislative committee as if the firm had reached those conclusions instead of NSHE itself. 

In 2014, NSHE was accused of having copied part of a report by think tank Brookings-Mountain West and used it to create a bill draft for grant funding for science, technology, engineering and mathematics education.

In 2016, NSHE faced criticism after UNR hired assistant basketball coach Yann Hufnagel, who had only one day prior resigned from the University of California, Berkeley, where he was under investigation for the sexual assault of a reporter. 

When the Nevada Legislature went into session in 2017, 11 bills aimed at reforming or realigning aspects of higher education were introduced. Among them was Assembly Joint Resolution 5—also referred to as the Nevada Higher Education Reform, Accountability and Oversight Amendment, or AJR5. It was introduced by Assemblymember Elliot Anderson and Senator Joyce Woodhouse. 

Nevada’s legislature and Nevada’s citizens have sufficient ability to impact higher education with two significant pieces of leverage: money and votes.”

The bill proposed to remove the “Board of Regents of the State University” from Article 11 of the Nevada State Constitution. 

AJR 5 would not, however, take away the voices of voters in electing their regents. It would not change the size of the board (13 seats), and it would not create multiple different boards to oversee each school individually.

The board would now, instead, be placed under the purview of the legislature, which could allow legislators to reform and reshape NSHE in any way they see fit. 

Bills aimed at amending the Nevada Constitution must pass through both houses of the legislature in two consecutive sessions. Having done that, AJR 5 now will appear on the 2020 general election ballot, allowing voters the final decision on its approval. 

Today’s policy debate

NSHE officials did not respond to requests for comment from This is Reno. But TIR was able to obtain a copy of the public comment submitted by NSHE to the Legislative Commission concerning language in the AJR 5 ballot question, which will appear as Question 1 on this year’s ballot.

This language is slated to be considered during a June 5 meeting of the Legislative Commission. NSHE’s comments—laid out in a statement written by Chief General Counsel Joe Reynolds—allege five instances of statements within the ballot question language in support of passage that are either “factually or legally false” or “misleading or factually unsupported.” 

Among them is the claim that Nevada is the only state whose higher education system is governed by an elected board with constitutional status. Reynolds points out that three other states—Colorado, Michigan and Nebraska—have systems of higher education governed by boards whose elections are guaranteed in their state’s constitutions. 

The submitted comments also refute the oft-repeated claim that NSHE considers itself a “fourth branch of government” and that the board has deliberately provided misleading information to legislators in order to get more funding. 

I do believe in building stronger relations between members of the Nevada Legislature and the NSHE Board of Regents whether AJR 5 passes or not.”

TIR also received comment from the Nevada Faculty Alliance. The alliance and its chapters comprise the advocacy and collective bargaining units within all eight NSHE institutions. 

Legislative liaison for the NFA Kent Ervin said the group does not currently have an official position for or against the measure.

“However, we have submitted public comments to the Legislative Counsel Bureau on their draft language for the ballot question,” Ervin wrote in an email. 

Among the comments and recommendations made by the NFA was one aimed at clarifying the meaning of academic freedom as it’s used in the ballot language and to whom it applies. The NFA argues it applies only to faculty because the nature of their work in higher education is “for the common good.”

“Constituencies like students and nebulous ‘contractors’ do not work within the same conditions as faculty producing knowledge for the public good, and therefore the protections of academic freedom do not extend to them,” the statement reads. 

The NFA would also like to see the following language added to the current text: 

“If the ballot measure passes, a future legislature and governor could enact laws that would modify the Board of Regents, including for example by making its members appointed rather than elected by voters, restructuring the Board, or eliminating the Board entirely.”

Candidates, legislator weigh in

TIR also reached out to candidates running for Washoe County’s Nevada Board of Regents District 10 seat as well as the few legislators who voted against AJR 5. (In 2017, four assembly members and two senators opposed it. Things went smoothly in 2019, also, with just five votes against in the Assembly and none in the Senate.) We heard back from two District 10 candidates and Assemblymember Teresa Benitez-Thompson, who represents District 27 in Washoe County. 

Benitez-Thompson explained her reasons for not supporting the bill, saying, “I believe the Constitution of Nevada set up a system of checks and balances: The Legislature controls the purse string of the Nevada System of Higher Education, and the citizens of Nevada elect the Regents. I believe Nevada’s legislature and Nevada’s citizens have sufficient ability to impact higher education with two significant pieces of leverage: money and votes.”

Candidate Andrew Diss, a former lobbyist who has also worked in the gaming industry, is in support of passing Question 1. He wrote in a statement, “I am in support of AJR 5 and have been advocating for its approval in November. I am very familiar with the genesis of it as I worked for the legislature during the time all the actions occurred that led legislators to introducing it.”

Diss’s only opponent to respond to requests for comment, Kevin Melcher, opposes Question 1. Melcher was appointed by Gov. Steve Sisolak to the Nevada State Board of Education in 2019 to finish the term of David Carter, who resigned citing personal reasons. Melcher was also an NSHE regent from 2011 to 2016. 

“I do not support AJR 5 because the Nevada System of Higher Education is not broken,” he said. “Our institutions are growing in good directions and making changes could result in unintended consequences — especially now during the COVID-19 situation. I do believe in building stronger relations between members of the Nevada Legislature and the NSHE Board of Regents whether AJR 5 passes or not.  

“Bipartisan collaborations are critical to quality governance and legislative relations. Electing quality Regents and Legislators who can and will work together is a key to success,” Melcher said.

The language in Question 1 will be debated and amended. But, for now, it’s anyone’s guess which way voters will decide on Nov. 3.