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 If HB 148 gets defeated, HB 174 should be repealed to respect that vote.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.