Education Vouchers: Should We Implement Them?

Regardless of how one feels about the current Education Voucher law in Utah, it is nonetheless a law. It is not vacated simply because there will be a referendum on the issue in November, or that it might be the subject of a lawsuit. It is bizarre that the Utah State Board of Education thinks that it has the authority not to implement the law, regardless of its reasoning.

Update: May 18, 2007 - The bulk of my post will remain unchanged, although since posting it my opinion has changed based on what I have since learned about what Utah law says about referendums. See Emily's comments at the bottom of the post for more insight into my change of heart.

When a law exists, it is brazen for anyone, let alone a governmental entity, to announce that it will not follow or implement the law. For reasons that the State of Utah might possibly be sued over the law, the Utah State Board of Education has refused to implement what the Legislature required by majority vote in its last session. It has not been found that that vote was obtained fraudulently.

Attorney General Mark Shurtliff recently reminded the State Board members of their duty.

In a response letter mailed [by the State Board of Education] Monday, Shurtleff, as the "constitutionally designated sole legal adviser" to the board," wrote in bold type, "it is incumbent upon the Board to implement the voucher program through HB174 immediately!"

Now let's see whether the State Board still balks, this time from its direct line of authority in the executive branch of government.

It is not the concern of the State Board whether a lawsuit will ensue. (Sometimes I seriously wonder whether State Board members wouldn't actually welcome such a suit, and whether some may even solicit one if the need arises.)

If the referendum passes in November, then further voucher scholarships would have to be discontinued. However, the law currently is that such scholarships should be awarded. In a spirit of integrity, it is time to get on with the program. (By the way, hypothetically, how should the people of Utah feel if it were such that our State Board of education continued to award voucher scholarships following a defeat of the law? We should be equally incensed that a government entity thwarts the law, regardless of what the law is.)

The State Board of Education's actions illustrate that the main motivation behind their and many other Utah state educators' backing of a referendum on the issue (which they hope will overturn the law) is not that they think that a victory for vouchers was underhandedly won. It is that they simply do not want public choice to rear its head in Utah for fear (rightly so) that when parents fully understand the magnificence of the choices placed before them. that genie will never be put back in its lamp.


  1. Frank,

    You are correct more often than you're wrong. In this case you have let your ideological crusade for vouchers cloud you judgment.

    I'm not going to bother explaining how HB174 came to're well aware of that. You know that it was never meant to be the legal vehicle creating the voucher program. Implementing the voucher program now after the program has been put up for a referendum defeats the spirit and purpose of the constitutional provisions protecting Utahns from bad legislation.

    When Republicans and their supporters attempt to override the constitutional process initiated with the obtaining of more than 92000 signatures of more than 10% of voters in every single county they show nothing more than their own lack of respect for the democratic process. I'll grant that technically HB174 isn't subject to the referendum. That said, the governor and many in the legislative leadership have claimed that they are willing to accept the will of the voters in November by recognizing a vote against HB148 as a vote against vouchers in any of the forms the legislature considered this past session. It makes perfect sense then that we should wait to hear the will of the people before forcing taxpayers to foot the bill for implementation of HB174.

    In the interest of intellectual honesty Shurtleff should back down and let the democratic process run its course.

  2. Thanks for your alternate perspective. You raise an interesting point about intellectual honesty, but I think legal honesty trumps it at this point.

    I don't base this on HB 174 being alive following the referendum. I base it on the fact that HB 148 is currently the law. I think the statements of the Governor and legislators to support the outcome of the referendum shows integrity, and I agree with it.

  3. Hi Frank,

    Indeed, HB148 is the voucher law --but the Atty General is asking the state school board to implement the voucher law based on HB174, not HB148.

    Says Shurtleff: "it is incumbent upon the Board to implement the voucher program through HB174 immediately!" But, many people, including several of the legislators who voted for it believe that HB174 can't stand *without* HB148, and according to Utah State law, HB148 cannot be implemented because of the referendum... thus leaving HB174 flapping in the wind.

    Utah's referendum process / law states that the law in question may not be implemented once required signatures are gathered and the Lieutenant Governor certifies it as a success.

    "When a referendum petition has been declared sufficient, the law that is the subject of the petition does not take effect unless and until it is approved by a vote of the people at a regular general election or a statewide special election."

    Source: Utah Code 20A-7-301. Referendum --Signature requirements -- Submission to voters.

    So... given that, do you still believe the voucher law should be implemented immediately based on HB148, even though it is against Utah statute to do so? Are you saying that we should ignore state law?

  4. ps - I don't like how our attorney general is making this a partisan issue. We need to look at this whole thing through non-partisan eyes.

    I also don't like the attorney general advocating that the state board of education implement something that really doesn't have any meat without its sister legislation.

    Now, we all know how I feel about vouchers... (grins) but more important to me is that we must follow existing Utah law. If the people decide this is what they want in the end, then let it stand. But not until then.

  5. Emily,

    Thank you for bringing Utah Code 20A-7-301 to my attention. I was not aware of that specific wording. That being the case, my specific contention in this post is invalid. My general point is that we should follow the law. Thank you for educating me on what the law really is. You are correct. I was wrong. I change my opinion. I now agree with you.

  6. Ugh...I just re-read my comment and I'm sorry about the "ideological crusade" crack. That doesn't even come close to describing your support for vouchers in the past on your site. Sometimes I get carried away when commenting on blogs. Sorry about that.

  7. Here's the problem, Frank. The AG has no authority to order anyone around outside of his own office. His opinions are not legally binding advisory opinions. The Legislature neutered most of the AG's pwoers during the 90s because they were afraid of the Democratic AGs at the time. So his "order" means nothing. Similarly, I am proud when any state agency does its level best to ensure there are not lawsuits when implementing the laws. It is a sign of intelligence, not weakness.

  8. If I were the utah School board, or any other entity, I would tread lightly on *anything* that may be questionable - the law is not clear without its parent legislation, leaving many questions unanswered.


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