The Voucher Fight Moves To The Courts

As predictably as the Cubs crushing the spirits of their fans with a long string of losses, it looks like HB 174, the second voucher bill, is going to result in a legal showdown between the attorney general, state school board and pro- and anti- voucher groups. The school board has decided to not implement the voucher program based on HB 174 alone, sending a list of 25 as-of-yet undisclosed questions to the attorney general’s office to assess if HB 174 really can be implemented as a standalone bill. As both sides of the issue dig in for a fight, I’m left wondering if our elected officials will do the honorable thing to resolve this sticky mess.

The first obvious problem is that while HB 148, the first voucher bill, is up for a vote, HB 174 can’t be subject to such a referendum. We could very well end up in a position where HB 148 gets voted down yet HB 174 remains. While I’m an ardent supporter of vouchers, I would want to see them done right. If HB 148 gets defeated, HB 174 should be repealed to respect that vote. Note that I said “if”. Should HB 148 pass with the voters, HB 174 should stay in place as the clean-up bill it was sold as. The current calls to repeal HB 174 now are grossly premature and a bit arrogant; this issue is close enough that we don’t know which way it’ll cut in November, so presuming we need to clear HB 174 right now is little more than tough guy posturing. An amendment of HB 174 to install a "cyanide pill" of sorts to kill the bill should HB 148 fail is much more appropriate.

A roadblock to this is the potential to interpret poll results in individual districts in such a way that a majority of legislators may be able to claim their constituents support or oppose vouchers and they won’t budge on their own support or opposition. Rep. Greg Curtis of Sandy spelled out that scenario to the Deseret Morning News showing that the fight could keep on going. This cuts both ways: we expect legislators to both carry out the will of those of us living in their district and make decisions that are good for the state as a whole. We also expect that they’ll consider the opinion of the whole body of those affected by a change (in this case, the whole of the state). Considering how the legislature ignored the unpopularity of the Real Salt Lake deal in Salt Lake County, I’m not too confident that state-wide numbers will carry much weight with legislators that aren’t in the majority.
You can bet, though, that the ringing of "majority rule" is sure to dominate this issue, slim as it might be. I’m certainly not comfortable with anyone claiming the tenuous "majority support" position on any issue that has less than 60% support. (The last polls showed about 55% opposed to vouchers, a steady decline from polls done in previous months and years.) Numbers that low are notorious for shifting around on a whim. What further muddies this “constituent support” argument is that polls on voter support or opposition to HB 148 haven’t been run since the legislative session ended.

Another big issue is that HB 174 might not be complete enough to implement a program that stands by itself. The obvious issue is that it’s missing legal definitions, a section critical to any legislation that gets passed. While some of the definitions could be pulled from other existing laws, most of it would end up being settled by the court. It could also call into question the legitimacy of the bill for missing such a critical section. While the AG thinks that HB 174 could be implemented and possibly survive a court challenge, I’m not sure that it’s such a good idea to move forward on such shaky ground. Like I said, let’s make sure we do this the right way, not the way that’s politically expedient.

Right now the debate hinges on if the school board is trying to implement the law in good faith or if they’re just trying to stall for time. In order to have the voucher program ready for the 2007-2008 school year, they have to have their work completed early this summer. Delays in implementation will likely cause the program to be shelved until the second semester or the next school year presuming that HB 148 passes. So what’s their game? Is the school board trying to do this the right way or are they just trying to buy some time until the election? I’m going to presume that they have legitimate legal questions that must be resolved prior to implementation, so I’m cutting them the benefit of a doubt until the list of questions goes public and we all have a chance to review them.

So what happens if HB 148 gets repealed and HB 174 can stand on its own? My bets are all on the program staying in place anyway. Past experience shows that laws are seldom repealed once passed and the Senate enjoys a strong enough majority that any repeal attempts would likely fail in committee. This strong block in the Senate means that even with significant turnover in the House, nothing is likely to change. (The reality for those who voted down HB 148 and voted for HB 174 is that they’re going to face some tough races with tough questions in 2008.) If we end up implementing a voucher program in such a contentious environment, I don’t doubt that it will be litigated and micromanaged into failure within several years. Such a defeat means the issue would likely be laid to rest for decades or longer, but too many of the short-sighted advocates are more concerned with short-term victories than long-term viability.

Regardless of how the vote cuts, I’m still planning on private schools or home schooling for my future children. The education system in Utah still hasn’t earned my trust despite the local elementary school being ranked #11 out of 600 schools in the state. I remain skeptical that they would become responsive to parental concerns and I feel that sending vouchers packing will only further the problem. Vouchers shouldn’t wait until the public education system is in full crisis mode and they shouldn’t wait until the budget doesn’t have the money to fund the program without taking money from public schools. If there was any time to plow into new or inventive programs, now would be it. There will come a time that we have no choice but to start looking at education alternatives and that desperation is notorious for breeding bad legislation. Let’s try not to get there.

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6 Responses

  1. Here is a list of the 25 voucher questions: They have been public since the May 3 meeting they were presented at.  If you read those questions, you will understand there are real, important, legal issues that the board is sincerely trying to address before implementing a voucher program. Also, your final contention is extremely preposterous.  The idea that you can ignore public education simply because your child goes to a private school is misguided, nearsighted, and dangerous.  We benefit from a educated populace, even if we don't have children.  And the only way that the majority of children will get that is through public education.  Therefore, we have to make our greatest investments in public ed.

  2. Jesse says:

    Thanks for hooking me up! (Oddly, the list has 20 questions instead of the 25 everyone has been reporting. Maybe that's bad data getting repeated in the echo chamber.) You're right, those are very important questions and if what I'm reading is correct, HB 174 could stand on its own as well as a one-legged puppy.

    I don't contend that public education can be ignored if you're not a consumer of it. (I don't yet have children, FYI.) I strongly believe that, regardless of the state's constitutional requirement to fund education, publicly financed education is critical to a vital state economy and the well-being of the populace. I think you might be misinterpreting my lack of trust in public schools as a lack of trust in publicly financed education. They are two separate and distinct things.

  3. Bill says:

    It comes down to this. Competition is good. Monopoly's are bad. right now public education is a monopoly.

  4. Dave Hansen says:

    Davis, You're using circular logic and missing a key point.  It's no wonder the voucher opposition doesn't get it.  Vouchers ARE public education.  The difference is that they separate government funding from government administration of our schools.  And if you don't think that vouchers are big enough to help the poor, then let's make the top amount bigger instead of throwing the baby out with the bath water! The other point you're completely missing is that the public good of an education can be provided through private means.  Does a child that is well-educated but in a private or home school not contribute to an educated populace?  Do we not all benefit from kids who get a good education regardless of whether it's at a charter, private, home, or traditional public school?  I think the answer is YES.  But the way you present it, somehow, a child educated at home doesn't contribute to the public good.  You are simply wrong.  To say otherwise is ridiculous.  Please explain to me how vouchers don't contribute to the public good, especially when research shows that kids using vouchers score as well as or better than control groups who don't use a voucher?  In addition, it allows the state to educate a child at a lower cost.  How does educating kids as good as or better than our current system and at a lower cost not contribute to the public good? I don't think voucher opponents have an answer.

  5. Dave Hansen says:

    Jesse, I don't get your argument.  You're saying that if HB 148 is repealed and HB 174 continues, that it will lay the voucher issue to rest for decades? But what do you think will happen if HB 174 is tied to HB 148 and HB 148 is repealed?  This will put the issue to rest for even longer.  Whatever happens, Utah has to have a voucher program move forward or there will never be a voucher program for anyone who currently has school-aged kids.  That's the bottom line. The other thing that upsets me is that this bill is a BIG compromise and yet, it's not enough for the UEA.  No voucher program ever will be.  I had a buddy that did some work with them and he asked what it would take for them to allow for there to be a voucher program.  Their reply was that not even 3 fold increase in public ed funding would appease them. The other thing that upsets me on this voucher referendum is the disingenuousness of the voucher opposition.  At the current moment, they're all for the public having a vote and deciding their fate.  But do you know what will happen if the public votes for vouchers, they'll then file a lawsuit against the voucher program's constitutionality.  In other words, they're only for "pure democracy" when they think it favors them. If they're really after a compromise that lets taxpayers decide whether or not to support a voucher program, then let's let taxpayers decide!  On our state income tax, they should add a check box that asks if it's okay if your taxes are used to fund vouchers.  If you check yes, then your taxes will be allowed to be used to pay for a child's voucher.  If there is more money in the voucher fund than needed to pay for all of the desired vouchers, the extra goes to the public schools.  If there's not enough, then the state will award vouchers by lottery.  Of course, the voucher opposition will come back and say, you don't get to decide whether your taxes go to one police department or another…blah, blah, blah.  But that's an apple to oranges comparison.  Vouchers still provide a public good, and probably do it better at a lower cost. 

  6. Jesse says:

    Dave: My contention is that if HB 148 fails at the polls and HB 174 fails at a later point in the courts, it would establish case law that could leave the voucher issue tabled for a very long time. If the issue gets brought up again, it could very well be litigated into nullification citing the same case law. (Case law and precedent are very important. We still refer to court cases from the early 1800s as being relevant.) A defeat of HB 148 at the polls could also take away the few swing votes that caused it to pass the House in the first place.

    I would think it better to, in the case of a defeat of HB 148, stage a strategic withdrawal of the issue for at least 5 years to let it cool off and work on building a more solid base of support and address some of the concerns of those opposed to the program. Perhaps making the program available only to low-income students and/or low-performing schools would make it more palatable.

    Legislative and ballot-box defeats are easy to overcome, especially in a high-growth state like Utah where voter demographics are rapidly changing. Judicial defeats, however, last for multiple decades. It's risky to push for a short-term victory (immediate enforcement of HB174) when the long-term risks are so great.

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