State education officials decided Tuesday they will not implement a voucher program in Utah, at least not in the near future.
The Utah Board of Education voted 10-4 to issue an order saying it would not create a universal voucher program based on HB174, the voucher amendment bill that critics say cannot stand alone without the original law.
Board members said they fully expect the action to be challenged, likely in the Utah Supreme Court. That could result in a prompt resolution to the messy issue compared with the length of time required by the lower-court process.
"I am not convinced there is a clear pathway in existence but, in my opinion, what we have sought to do is establish a more clear pathway as directly and expeditiously as we can," board chairman Kim Burningham said.
In related news, voucher opponents plan to file suit today to challenge the ballot language that was penned for the November referendum vote. They feel it doesn't thoroughly spell out the impact a voucher program would have in the state.
The Utah Board of Education's action came after a lengthy closed meeting with Utah Attorney General Mark Shurtleff, who has previously advised the board to implement HB174.
But some state board members said his opinion, a response to more than two dozen questions about implementing HB174, was one-sided.
"It's the same thing teachers tell their students, 'There's an easy way and a hard way,' and they chose the hard way today," Shurtleff said. "Telling themselves they don't have to follow a law is not what I recommended — I agree that it needs to get to court as soon as possible, but you can't create, out of nothing, a way to get to court."
To even issue such an order under the Administrative Procedures Act, he said there has to be "an immediate and significant danger to public health, safety or welfare." Shurtleff said this case wouldn't cut it under that requirement.
But board member Janet Cannon said there is a danger to the public welfare — including the educational needs of parents and their children — and the board's action is appropriate.
Regardless, Shurtleff said, the board members have now given opponents additional grounds on which to challenge them.
The confusion comes from the fact that there are two different voucher bills. HB148 would allow Utah families to receive a private-school tuition voucher, ranging from $500 to $3,000 per student based on the parents' income. It also would appropriate $9.2 million for mitigation money to offset any financial impact school districts may experience for five years after a student leaves and goes to a private school.
Voucher opponents sought a referendum, which put that law on hold pending a vote.
But HB174 also passed. It was aimed at tweaking the original bill with increased funding to run the program. A lot of the language (sans the funding) in the first bill was duplicated in HB174, so voucher supporters say that bill alone should create a voucher program.
Last week, Rep. Sheryl Allen, R-Bountiful, filed the petition asking the board to issue an order saying it would not implement a voucher program based on HB174.
Alan Smith, Allen's attorney, told board members the legislative intent was clear, both in the language of the bill and floor debates during the session, that HB174 was an amendment and nothing more.
"If you follow the words written, there is no mistake — it clearly tells us that it is intended as an amendment," Smith said. "The amendment is not the primary legislation, it is a branch, and branches do not stand alone when apart from the tree."
Some lawmakers also told the board there was never any indication that the amendment bill could stand on its own — if there was, they wouldn't have voted for it.
"We were assured it was cleanup legislation — there was confusion among senators and representatives," said Rep. Rosalind McGee, D-Salt Lake. "HB174 is a muddle policy fragment."
But pro-voucher leaders said that refusing to implement the amendment was "open defiance against Utah law."
"The board's continued defiance of the law is an outrageous breach of its responsibility to do the job the people of Utah elected its members to do," said Doug Holmes, chairman of Parents for Choice in Education.
"The board is not a court, nor is it the Legislature. Its job is to implement the law, and it should be above playing politics," he said.
Voucher proponents have 30 days to file an appeal with the Utah Court of Appeals. That court could send the issue directly to the Utah Supreme Court for a ruling on whether HB174 can stand alone and establish the voucher program.
Today, voucher opponents plan to file suit challenging the 100 words written for the referendum because the Office of Legislative Counsel and General Research failed to indicate a voucher program would take significant money out of public schools. They also want it clarified on the ballot that if the public votes down HB148, then HB174 also would be rejected.
E-mail: terickson@desnews.com