Tuesday, March 13, 2007

Pro-petition Response Part I: A dead (or static) HB 148 could kill vouchers.

There has been plenty of discussion on vouchers on a lot of Utah blogs, some of whom I have listed below. While there has been plenty hyberbole on the pro-petition side, there has been a lot of disinformation on the anti-petition side. I respect everyone’s views and have no reason to believe any blogger is writing out of any ulterior motive. However, that does not mean that some are wrong.

For those of you who want to see what I think about vouchers in general, I urge you to read my series of blog posts in January and February about vouchers:

School Choices: Questions About State Educational Policy in America--Part I

School Choices: Questions About State Educational Policy in America: Part II

School Choices: Part III Problems

School Choices: Part IV Problems for Government

School Choices: Part V A Preferred Policy Solution: School Choice?

School Choices VI: A Brief History of Choice

School Choices VII: Implementation and Outcomes

No on HB 148, No to Vouchers: An Unproven Risky Scheme

No on HB 148, No to Vouchers: Constitutional Issues

No on HB 148, No to Vouchers: Unrealistic Finances

No on HB 148, No to Vouchers: The Wholesale Purchase of the Legislation by Purchase of the Legislators

No on HB 148, No to Vouchers: Conclusion

I want to address this issue in several posts, and will start with the differences between HB 148 and HB 174. In doing so, I recognize that I am not a lawyer, but I am simply making some reasoned arguments in comparing the two bills.

174 does not have any amendments to six of 148’s sections. I believe the following could be implicated based on the absence of the following sections, should the petitions qualify for ballot access and 148 not be enforced until a referendum:

  • 53A-1a-801, Utah Code Annotated 1953—I will leave it up to a lawyer to decide whether a code section without a title means anything. I don’t know.
  • 53A-1a-802, Utah Code Annotated 1953—There are major problems with the program without the findings. Perhaps most importantly, and Rep. Urquhart made pains to state this in his committee testimonies, the religious neutrality clause is stripped away.
  • 53A-1a-803, Utah Code Annotated 1953—Without definitions, there are major problems enforcing a law. Especially when there is no specific agency assigned to enforce it.
  • 53A-1a-807, Utah Code Annotated 1953—Mitigation monies were some of the major justifications for passage, and many legislators cited it as a reason for voting for this bill instead of previous attempts. Without these monies, public schools will be punished. Because each school will have no idea who will receive a voucher or not, schools and districts will not be able to carefully plan budgets for submission to auditors.
  • 53A-1a-809, Utah Code Annotated 1953—HB 148 was already short on accountability provisions; without enforcement power, whatever agency in charge of administering the program will effectively be giving tax dollars away without any way of stopping. If the agency chooses to stop funding a scholarship, the recipient school could sue that their due process rights were abridged, because there is no due process written in the code to terminate funding.
  • 53A-1a-810, Utah Code Annotated 1953—In an alternate line of reasoning, without the prohibition against regulation, Rep. Aagard’s fear that a voucher program could unnecessarily regulate private enterprise could come true. (I am not certain it was Aagard that said this during floor debate, but it was one of the no votes from Northern Davis County).

Also missing from 174: a fiscal note for funding the scholarships, meaning if spending for the voucher program does not jive with the overall budget, it could cause major problems for fiscal analysts and down the line (to the taxpayer who may be over-taxed).

The two bills have exactly the same text in the other five sections, with five exceptions which I have bolded:

In 53A-1a-804. “Scholarship program created -- Qualifications – Application,” adds

“(4)(b) Upon acceptance of the scholarship, the parent assumes full financial responsibility for the education of the scholarship student for the period in which the student receives the scholarship, including costs associated with transportation.”

In section 53A-1a-805. “Eligible private schools,” adds

“(1)(g) employ or contract with teachers who have completed a criminal background check that complies with the requirements of Section 53A-3-410 and:…”

“(3) The following are not eligible to enroll scholarship students:…

(c) a school that encourages illegal conduct; or…”

Adds another $100,000 for the School Board to administer the program next fiscal year (2007-08)

Also adds: “Section 7. Coordinating H.B. 174 with H.B. 148 -- Substantively superseding amendments.

“If this H.B. 174 and H.B. 148, Education Vouchers, both pass, it is the intent of the Legislature that the amendments to the sections in this bill supersede the amendments to the same numbered sections in H.B. 148 when the Office of Legislative Research and General Counsel prepares the Utah Code database for publication.”

What are the implications of these changes for our purposes? Well, it could mean that vouchers could be instituted, but with major legal problems evident. Therefore, it would be up to the courts to determine if, either between ballot access and referendum and/or the referendum is successful, HB 174 amendments would be legal without a code to amend them to.

As I said, this is a series and I will address further arguments in further posts. But if you have a question on this analysis, feel free to ask.

Blogs for voucher petition:

Utah Amicus

Jeremy’s Jeremiad

Utah State Democratic Party

The World According to Me, Bob

Centerville Citizen

Third Avenue

Democracy for Utah

Utah Senate Democrats

Education in Utah

Blogs against voucher petition:

Coolest Family Ever

Davis County Watch


Utah Conservative

Senate Site

Utah House Majority

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