Thursday, August 16, 2007

What does Utah's Constitution say?

A Salt Lake County correspondent named Susan writes to Rep. Steve Urquhart at his weblog with this question:"How can lawmakers justify diverting taxpayer money to private schools if these private institutions are not held to the same performance and assessment standards as public schools under federal No Child Left Behind guidelines?"

But Rep. Urquhart sidesteps the point of Susan's question and repeats his case for vouchers.

In fact, the Utah Constitution allows no room for the diversion that Susan describes. In their wisdom, Utah's founders and succeeding generations of lawmakers adopted and have governed the state by three principles relating to provision for education in Utah. The first is found in Article X, Section 1, which declares that "The Legislature shall provide for the establishment and maintenance of the state's education systems including: (a) a public education system, which shall be open to all children of the state; and (b) a higher education system. Both systems shall be free from sectarian control." This section affirmatively sets forth the state's responsibility for public education, available to all.

The second principle is found in the very next section, Section 2: "The public education system shall include all public elementary and secondary schools and such other schools and programs as the Legislature may designate. The higher education system shall include all public universities and colleges and such other institutions and programs as the Legislature may designate. Public elementary and secondary schools shall be free, except the Legislature may authorize the imposition of fees in the secondary schools."

Where Section 1 rigidly assigns responsibility for public education to the legislature, Section 2 grants the legislature flexibility to provide for schools and programs outside the pool that is described as "all public elementary and secondary schools," but even this grant of flexibility doesn't extend beyond the boundaries of "public" education. And the legislature has, in fact, exercised its authority to designate "other schools and programs" as part of the public education system, the most important example of this being the establishment and support of charter schools.

But while Sections 1 and 2 affirmatively establish the public education, assign responsibility for it to the legislature, and grant the legislature sufficient flexibility to make changes to the system as needed, Section 9 actively bars the state and local governments from supporting certain kinds of schools. It reads, "Neither the state of Utah nor its political subdivisions may make any appropriation for the direct support of any school or educational institution controlled by any religious organization."

This is one of the 10 reasons that Rep. Kay L. McIff, a Republican serving Emery, Sanpete and Sevier counties, opposed Urquhart's bill last winter. Rep. McIff wrote on April 11, "Utah entered the Union under suspicion that religion would dominate public schools. The Congressional Enabling Act of 1894 and the Utah Constitution of 1896 prohibited what the voucher bill now authorizes. The first Legislature could not have funded the parochial schools (mostly Mormon) then in existence. The constitutional barrier remains unchanged."

(Rep. McIff's guest editorial can be found here

And while we consider the Utah Constitution's view of the measure now resting on the November 6 ballot, it is valuable to note Article IV, Section 10 of that document, which proscribes the oath of office administered and re-administered to elected and appointed officials. The section reads, "All officers made elective or appointive by this Constitution or by the laws made in pursuance thereof, before entering upon the duties of their respective offices, shall take and subscribe the following oath or affirmation: 'I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this State, and that I will discharge the duties of my office with fidelity'."

So, as a matter of constitutional law, and as a matter of fidelity to the state of Utah and its people, it is certainly incumbent on lawmakers to take the Constitution into account when drafting legislation. Which brings us back to Susan's simple question: "How can lawmakers justify diverting taxpayer money to private schools if these private institutions are not held to the same performance and assessment standards as public schools under federal No Child Left Behind guidelines?"

And the obvious, simple answer: There is no constitutional justification, so any justification that is offered must be political, and we are wise to observe it as such -- and to seek out objective information upon which to make our own decisions.

Susan correctly notes in her question, and we find in a plain reading of Rep. Urquhart's bill, that potential voucher schools will not be held to the same performance and assessment standards as Utah's public schools. But that is not the only difference in standards allowed by the voucher proposal.

Consider that state law requires that Utah's public, or constitutional, schools dismiss teachers who engage in criminal conduct. No law requires voucher schools to hold their employees to this standard. Similarly, state law requires that any building used for public education purposes must be a safe, secure building and meet building codes and safety standards. But nothing in the voucher plan requires these that safety and security provisions apply to voucher schools; it only asks that voucher schools not be housed in a residence or be an "online" school.

When it comes to the qualification of instructors, state law requires that teachers in Utah's public schools have a college education, and a teaching license, and be highly qualified according to state and federal laws. But nothing in current state law or the proposed voucher plan requires that voucher schools ensure the same level of educational or professional qualification for their instructors. Nor are there any coursework requirements applied to voucher schools, nor performance standards, nor requirements for real accreditation, nor even any requirement that classes meet regularly or that students attend them. Only Utah's public, or constitutional, schools are held to these standards.

Susan is right to be concerned about accountability under the proposed voucher plan. Even a careful reading of it finds no requirement that voucher schools demonstrate how they spend the public revenues they would receive, while Utah's public schools are required, by law, to show taxpayers annually all of their income sheets and expenses.

And if these differences in standards and accountability aren't enough, we are reminded that every child brought for enrollment in Utah's public education system is enrolled there, without exception, including children with special needs, and without regard for a family's income, or social status, or a family's religion, or the language they speak. But voucher schools are bound by no such requirements. They remain free to reject students with special needs, or to charge much higher tuitions and fees if they do accept such students. And they remain free to reject children of various faiths, to reject children whose parents lack economic status or social standing, and to reject children who don't yet speak English.

As we can see, the differences between the system supported by our Constitution and the system offered to us by a voucher plan are significant.

So if there is no constitutional justification for the voucher plan, what must be the political justification for it? A rational voter can conclude this for himself: The goal must be to devise two systems of education in Utah, thus dividing Utahns according to political philosophy, and by doing so, to undermine the work being done by the public education system defined in the Utah Constitution. To what end? Only Rep. Urquhart and the co-sponsors of the voucher plan know their motives. But any plan to degrade the system established by the Utah Constitution must have, at its heart, an intention to disassemble the Constitution's system and install in its place an alternative system, rooted in a different political philosophy -- one without any accountability to Utahn taxpayers.