McDonnell, 041719 NEAGO, AGO 19-4

Case DateApril 17, 2019
CourtNebraska
Senator Mike McDonnell
AGO 19-4
No. 19-004
Nebraska Attorney General Opinion
State of Nebraska Office of the Attorney General
April 17, 2019
         SUBJECT: Constitutionality of LB 644—the Nebraska Workforce Diploma Act          REQUESTED BY: Senator Mike McDonnell Nebraska State Legislature          WRITTEN BY: Douglas J. Peterson, Attorney General, Leslie S. Donley, Assistant Attorney General          You have requested an opinion from this office regarding the constitutionality of Legislative Bill 644, which would create the "Nebraska Workforce Diploma Act" (Act). You indicate in your opinion request letter that LB 644 "authorizes the Nebraska Department of Labor to institute a program providing a pathway for adults without a high school diploma to earn the missing credits necessary to receive a high school diploma." You state that "[u]nder the Act, an 'eligible workforce diploma program' is defined as an 'accredited or approved, public or private, high school provider.'" Program providers are directly reimbursed by the Department of Labor when students reach certain educational milestones described in the bill. You question whether LB 644 violates Neb. Const, art. VII, § 11, which prohibits the "appropriation of public funds ... to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision You have also inquired whether a distinction exists between state "funding for private providers of K-12 high school programs for ages five to twenty-one versus an adult high school program for ages twenty-two and older?" Our responses to your inquiries are set out below.          LEGISLATIVE BILL 644          Sections two to six of LB 644 create the Act. Section 3 requires the Department of Labor (Labor), on or before August 15, 2019, and each year thereafter, to "request applications from eligible program providers to participate in the workforce diploma program." Sec. 3(2). An "eligible workforce diploma program provider" is defined as
an accredited or approved, public or private, high school provider. An eligible program provider shall also have at least two years of experience providing adult dropout recovery services, including recruitment, learning plan development, and proactive coaching and mentoring culminating in qualification for a high school diploma.
Sec. 3(1). Participants in the workplace diploma program must be at least twenty-two years of age and have no high school diploma or high school equivalency diploma. Id. A "workplace diploma program" is not defined.          Providers applying to participate in the program must demonstrate "evidence" of several criteria, including "[a]ccreditation or approval by the State Department of Education or accreditation by a recognized regional accrediting body or consolidation thereof."[1] Sec. 3(2)(a)-(k). A workplace diploma program may be offered "in a campus-based, blended or online modality." Sec. 3(3). Labor is required to announce the approved providers on or before September 15, 2019. Providers are then required to establish a program and begin accepting students on or before October 15, 2019. Unless otherwise required in the Act, a provider is not required to reapply once approved. Sec. 3(4).          Section 4 requires Labor to reimburse each provider participating in the program an amount which correlates to a student's completion of a specific "milestone." The bill lists six milestones, beginning with a $250 reimbursement for the completion of five credit hours,[2] and culminating in a $1,000 reimbursement when a "high school diploma" is attained. Sec. 4(1)(a)-(f). Labor is required to reimburse providers based on the order of invoices received until all available funds are exhausted. Sec. 4(3). Section 5 sets out the reporting requirements and the minimum program performance standards for providers. Section 6 sets out the legislative intent to appropriate $2,500,000 for fiscal years 2019-20 and 2020-21 to carry out the provisions of the Act. Finally, Section 8 includes an emergency clause.          The Introducer's Statement of Intent for LB 644 indicates that
[i]n an effort to promote workforce development in Nebraska, LB 644 is intended to provide the framework for creation, administration, and implementation of an adult workforce diploma program that would provide adults, at least twenty-two years of age, the opportunity to complete their high school diploma and develop critical career and technical skills to prepare for employment.
         Procedurally, the bill was scheduled for hearing by the Legislature's Business and Labor Committee on February 11, 2019. It remains in committee.          RELEVANT CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS          Nebraska Constitution          Three provisions in the Nebraska Constitution are pertinent to your inquiries. First, Neb. Const, art. VII, § 1 provides, in pertinent part, that "[t]he Legislature shall provide for the free instruction in the common schools of this state of all persons between the ages of five and twenty-one years." Second, Neb. Const, art. VII, § 2 provides that "[t]he State Department of Education shall be comprised of a State Board of Education and a Commissioner of...

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