Monday, May 21, 2007

State School Board: Above The Law?

Lately, I get indignant about very few things, but this weekend I saw something that was maddening.

First, some background. The State Board has refused to implement the voucher law until their twenty questions are answered by the Attorney General. Kim Burningham, the Chairman of the State School Board was on with Rod Decker saying how surprised he was that the School Board had not been sued to prevent them from implementing vouchers before the deadline. I could see that it would have been politically advantages for Burningham to have the board be the target of a lawsuit. Then it would be easy for him to say, 'we can't implement vouchers until the courts give us permission'. The fact is that nobody sued, and now Burningham is trying to justify not following the law.

Burningham appears to be getting away with it.

Mr. Burningham, oppose vouchers if you will. Speak publicly against them. Devote your political clout to their ultimate demise, but follow the law! Just follow the law!


Jeremy said...

We had a great conversation about this issue over at Frank Staheli's website last should check it out:

Tyler Farrer said...

Interesting. Although, I'm a regular reader of Franks blog, I have to admit that I was busy last week and didn't read this one.

I agree with Frank about everything except that I think that is 174 that implements the law, not 148 which ought to be on hold until the referendum process is complete. It is the 'law of unintended consequences' at work here that makes 174 the trigger for the voucher law. This is all we get.

Kim Burningham is a smart guy. He knows what he's doing, and I think he is playing games with the law.

Jeremy said...

He's not playing games with the law more than Shurtleff or the Republicans.

There are good legitimate reasons why an administrator would be hesitant to enact obviously faulty legislation...especially when the actual law meant to bring this program about is up for a referendum.

Voucher supporters can bitch and moan about 174 not being implemented but there are lots of good obvious reasons not to do it...more than enough to justify Burningham's position on the matter.

Republican efforts to get 174 put into effect smack of blatant partisan gamesmanship and clearly don't reflect either the will of the people in Utah or what is in our state's best interest.

Frank saw this clearly which is why he didn't argue for the program to be implemented based on 174.

Jesse Harris said...

I'm a voucher supporter and I don't think that HB 174 can stand on its own without some necessary clarification. With a missing "Definitions" section, many of the terms within the bill have unclear legal meaning. I could understand Mr. Burningham's hesitation to implement a program without getting precise direction on where those definitions should come from. In this case, he's playing it safe to not jump head-first into muddy waters.

Based on what I've seen of the questions and the answers to them (keeping in mind that IANAL), I don't think HB 174 can be implemented without a lot of work on the definitions. I am, of course, presuming that Mr. Burningham is acting in good faith through this process and I'm willing to give him the benefit of the doubt. If he gets answers to the questions he sent to the AG's office that clarify things sufficiently to implement the program and he still throws up roadblocks, then I'll be more inclined to believe that he's letting his personal opinions rule the day.

Tom said...

It's nice to see rhetoric on both sides being tempered over the past couple of weeks as people become more informed regarding the legal tangle we get to deal with.

One of the missing definitions is what the "income eligibility guideline" is. HB 148 directed the use of the USDA Free/Reduced Lunch standard. In order to ethically and legally comply with the referendum, the Board couldn't use the same standard without showing it arrived at it independent of legislative intent (which is suspended with HB 148).

Even if the Board were, during its May meeting, to agree on what the definition should be, and made the other significant changes to the proposed rule necessitated by the suspension of HB 148 (unwise to do in a hurry, I think), Utah law (63-46a-4) requires a public comment period and delay such that the rule would still not be in effect today, even if it has passed at the last meeting.

Also, the Board was allocated no money to implement the program until July 1 (the next fiscal year), because HB 148 was suspended. Ironically, this makes the voucher law an unfunded mandate, similar to what our legislature railed against with federal NCLB requirements. The issue is even stickier, though: the bill was crafted to use only general fund dollars in order to provide greater constitutional protection to the voucher program. If the office were to divert money from the education fund to cover the certain shortfall, the future of the voucher program might be at greater legal risk.

These reasons alone were, I think, enough to delay implementation at the last meeting.

To push the discussion in a different direction, I believe the Board has authority under the Utah Constitution to "patch" the "holes" in HB 174, including the missing definitions. ("The general control and supervision of the public education system shall be vested in a State Board of Education. ...", Art X Sec 3.) I also wonder if the constitutional provision is strong enough for the Board to say, "No." The legislature has two strong points in its favor: constitutional direction to "provide for the establishment and maintenance of .. a public education system" (Art X Sec 1), and the check that comes with budgetary authority. There is no guiding case law on this issue.

Tyler Farrer said...

Jeremy, I'm only arguing that vouchers be implemented on 174 because that is the only law that is currently in effect.

I realize that it may not reflect the will of the people, but it is the law. Whether partisanship is in play or not is irrelevant. We should play by the rules.

I'm interested in Tom's comments. They seem to be very informed. Thus far, every legal opinion I've seen indicates that 174 stands due to it passing by 2/3rds majority, and makes the 'will of the people' only relevant when election time comes and it's time to pick our next legislators.

Jeremy said...

I hope Tom's comments are informed since he's actually a player in this whole thing :-)

Sorry Tyler...implementing 174 and throwing a obviously problematic program out there isn't good for any of us and it definitely isn't clear that the School Board is legally compelled to do that right now.

Tom said...

< grin >

Jeremy's right--I'm on the State Board of Education, so I'd *better* be informed.

... It's also why I bristle a bit at statements like "Above the law."

As an aside, most of the voucher proponents I've spoken with concede privately that not passing the rule was the correct action for the time being, but they are eager to see progress. I think the next month or so will clarify where the Board as a whole stands with respect to implementing HB 174.