So, what does House Bill 148 say?

I have written several times that Utah voters would benefit tremendously from a step-by-step look at House Bill 148, the voucher plan that's actually on the November ballot. But no one in any corner has offered such a thing. One side of the voucher debate has, in fact, apparently decided that it would suffer damage to its cause if the bill was spelled out in plain English so the average voter could read it and think about it. Instead, we've heard plenty of talk about the idea of vouchers generally, as if there wasn't a real, genuine plan written in black-and-white that we could pick up and talk about, if someone would just bring it out.

Well, rather than leaving it to sit in the dark, I'd like to bring it out. Mind you, I don't pretend to be a lawyer or a lawmaker. But if the average reader can't look at the words and figure out what they mean, then maybe that's part of the problem. Maybe the plan needs to go back to the drawing board for revisions. Maybe it needs to go away altogether. Those are decisions to be made on November 6. In the meantime, here's one clear-eyed examination of the bill -- and the best first step is to call it what it is: a proposal to use public funds to establish the first statewide voucher system in America.

I found the bill on the internet, where anyone else can find it too: http://le.utah.gov/~2007/bills/hbillenr/hb0148.htm.

And, before anyone gets caught up in the argument that House Bill 174 cleans up or corrects House Bill 148 -- so it's unfair to read House Bill 148 without reading House Bill 174 at the same time -- I would remind them that House Bill 148 is on the November ballot. House Bill 174 is not. A case went all the way to the Supreme Court, and not even the Supreme Court put the second bill on the ballot. So the bill we're talking about is House Bill 148.

And the general description of the "enrolled" bill reads, plainly, "This bill creates a program to award scholarships to students to attend a private school."

First, the bill creates a brand-new state government program. Those who oppose expanding government will likely not support this plan.

Second, the description says this new program will award scholarships to students. I know what a scholarship is: It's an award given to students who reach a certain level of academic achievement and want to continue their education. Since we know this bill is not about giving awards to students who reach a certain level of academic achievement and want to continue their education, we may wonder why the men who wrote this law chose to begin by using misleading language.

Third, we know that this bill has nothing to do with awarding money to students who reach a certain level of academic achievement because of the last five words of the general description: "to attend a private school." The vouchers offered by this plan are not awards. They are, instead, incentives to leave one school, presumably a public school, and to enroll in a private school.

If this is a false conclusion, and if I have read the simple meaning of these plain English words, I would invite others to correct my reading of the sentence and to offer an alternative interpretation.

Beginning at line 10 -- the lines of the House Bill are numbered -- the authors of House Bill 148 offer what they call "highlighted provisions." Specifically, they write, this bill

11 This bill:
12 . specifies criteria for qualifying for a scholarship;
13 . specifies criteria for private schools to enroll scholarship students;
14 . specifies the amount, timing, and form of scholarship payments;
15 . requires the State Board of Education to make rules;
16 . gives the State Board of Education enforcement authority;
17 . requires the Legislature to annually appropriate money from the General Fund for
18 scholarship payments; and
19 . allows a school district to retain in enrollment a student that transfers to a private
20 school for a period of five years, with a deduction equal to the average scholarship
21 amount.

We've already concluded that the language of the bill is misleading and that these funds do not represent true "scholarships," so I will take the liberty of using the correct word -- "voucher(s)" -- where the authors have used the word "scholarship(s)." To continue using the misleading language is to make their use of the word legitimate.

Therefore, these "highlighted provisions" more accurately read,

11 This bill:
12 . specifies criteria for qualifying for a (voucher);
13 . specifies criteria for private schools to enroll (voucher) students;
14 . specifies the amount, timing, and form of (voucher) payments;
15 . requires the State Board of Education to make rules;
16 . gives the State Board of Education enforcement authority;
17 . requires the Legislature to annually appropriate money from the General Fund for
18 (voucher) payments; and
19 . allows a school district to retain in enrollment a student that transfers to a private
20 school for a period of five years, with a deduction equal to the average (voucher)
21 amount.

So this bill will explain who will qualify for a public-funded, private-school voucher and how; which private schools can qualify to receive a public-funded, private-school voucher, and how; and how much public funding will be given to private schools in the form of vouchers, and when.

It requires -- which is a very specific, and very strong word, one that is used sometimes but not used other times, depending on the subject -- the State Board of Education to make certain rules, and it gives the Board the authority to enforce its rules.

It requires -- again, the specific, strong word -- the Legislature to set aside money every year from the General Fund to pay for vouchers.

And it allows -- notice that the authors didn't use the specific, strong word "requires" but this time only "allows" -- a school district to lie to the state department of education about its actual enrollment figures. The plan lets a school include a student on its rolls for five whole years after the student has taken the public-funded incentive to leave public schools and has enrolled in a private school. Does any other provision of state law "allow" a public school to lie to the state department of education?

Again, I am reading the words of the bill and applying what an average person would say is the plain meaning of the words to find the most reasonable explanation of the bill. I invite others to correct my meaning if I'm wrong, and to offer their own interpretation of these words.

Next, the authors have written that

23 This bill appropriates:
24 . as an ongoing appropriation subject to future budget constraints, $100,000 from the
25 General Fund for fiscal year 2006-07 to the State Board of Education.

So the Legislature will be told to set aside an amount every year to pay for public-funded private-school vouchers from the General Fund, and the amount it was required to set aside for the 2006-07 fiscal year was $100,000. That seems a very small amount to cover all of the children that the bill says it will cover, even in the first year.

There's a bland section that indicates where this particular bit of law will fit into the state statutes, then it gets to the title of the bill, the "Parent Choice in Education Act." This title is followed by a part called the "findings and purpose," which may be legal jargon to mean that these are conclusions that the Legislature has drawn, without really being scientific or legal findings of fact, and to explain why the authors are writing this piece of law. I suppose this may help historians in the centuries to come to understand what was going through the minds of the authors at the moment. But I think it's strange that the "conclusions" drawn and opinions held by a few men, not really based on anything factual or substantive, are written into a law. It makes me wonder what else is written into Utah statutes that people really never noticed was there. The authors say that the "Legislature finds that:"

50 (1) parents are presumed best informed to make decisions for their children, including
51 the educational setting that will best serve their children's interests and educational needs;
52 (2) the establishment of this choice in education program is justified on the basis of
53 funding the educational needs of school-age children as determined by their parents;

If nothing else in the plan makes it clear that the grants of public funds to private schools are not true "scholarships" but are just diversions of public funds to private schools based on someone's political ideas, this section did. The entire plan is "justified," it says, on the basis of something that doesn't relate to a student's having reached a level of academic achievement. But the next part bears reading twice:

54 (3) school-age children are the primary beneficiaries of the choice in education
55 program authorized in this part, and any benefit to private schools, whether sectarian or secular,
56 is indirect and incidental;

Unless someone can explain this to me differently, I believe this was an attempt by the authors to get around Article X, Section 9 of the Utah Constitution, which 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.

By claiming that the "primary beneficiaries" of the public-funded private-school vouchers are children, and that any benefit to "sectarian" "private schools" is "indirect and incidental," I believe the authors see the Constitutional conflict in their plan and hope to immunize themselves against a court ruling that vouchers are unconstitutional.

If there's another reason for this part of the "findings and purpose" to exist in House Bill 148, or if I've misinterpreted the plain English of the Constitution, I welcome hearing another explanation. I did write about this topic some weeks ago here (http://accountabilityfirst.blogspot.com/2007_08_01_archive.html#594952384401936106) and don't remember getting any different interpretations in feedback.

The "findings and purpose" goes on to say,

57 (4) the choice in education program authorized by this part is available to the parents of
58 school-age children, solely on the basis of income level for the year immediately preceding the
59 year for which a (voucher) is sought, and not on the basis of sex, race, religion, national
60 origin, or any other criteria; and

Again, it clearly has nothing to do with reaching a level of achievement. Instead, it clearly has to do with calculating parents' income and giving them a large enough incentive (up to a limit) out of public dollars to encourage them to leave public schools and enroll in private schools.

And finally, the "findings and purpose" declares that

61 (5) the choice in education program authorized in this part is:
62 (a) enacted for the valid secular purpose of tailoring a child's education to that child's
63 specific needs as determined by the parent;
64 (b) neutral with respect to religion; and
65 (c) limited in its assistance to a parent, who may choose to use the (voucher) to offset
66 tuition or fees charged by a private school, either sectarian or secular, in which enrollment of
67 the parent's child is sought, solely as a result of the parent's genuine and independent private
68 choices.

This language plainly sets out to suggest that parents currently have no control over their child's education, when all parents -- indeed, all citizens -- have absolute control, through the ballot box, over almost every aspect of children's education in public schools. To say otherwise is to deny the Constitutional rights of Utahns and all other Americans. Do we not have Constitutional rights to vote, to elect our representatives and to approve or disapprove their decisions? If we do, then to say that we don't is, again, misleading.

But I find another slippery phrase buried in this language pointed at parents: "may choose to use." Read it again with emphasis on that phrase:

65 (c) limited in its assistance to a parent, who may choose to use the (voucher) to offset
66 tuition or fees charged by a private school, either sectarian or secular, in which enrollment of
67 the parent's child is sought, solely as a result of the parent's genuine and independent private
68 choices.

"May choose" implies that the opposite is also true: "may choose not." If someone is not "required" -- the specific, strong word -- the use this public-funded private-school voucher to offset the tuition or fees charged by a private school, then how else "may" someone "choose" to use the public funds?

And how are the recipients -- whether the authors define that word as parents of school-age children or the private schools that cash the checks -- held accountable for the public dollars? Or is there no accountability "required" -- the specific, strong word -- at all?