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Thursday, May 31, 2007Constitutional Remedy
Don’t love a Utah Law?
You're a citizen. Our state's founders gave you two direct remedies.
An initiative can erase the entire voucher program. A referendum, as you’ve heard, can only erase the first voucher bill. It can’t touch the second unless, of course, someone like the legislature or the courts provide the legal acrobatics to make the referendum mimic an initiative. Interestingly, the education entrenchment reacted to vouchers by jumping into a vehicle that can not get them where they need to go. A referendum cannot provide clarity at the ballot box and does not offer the legal remedy they seek. But, by design or through bad advice, a referendum is what they chose. . . and then quietly tip-toed away when folks started blaming the legislature for causing the confusion. An initiative could have - and still can - erase the entire voucher program, if that is what the voters want. Straight up or down.
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21 Comments:
Matt Cahham’s Article steps back and gives us a good overview of the landscape.
Steve Urquhart: "Hire me a swami to tell me what the vote means at this point."
Lisa Roskelley: "We are open to different options as long as clarity is the result."
The legislature did cause the confusion.
They ignored the people's voice when they first passed vouchers. How arrogant was it to decide that the ammendments the elected Democratic Senators brought to the table should not be taken seriously. It was Republican arrogance at its best.
Take responsibility for your mess!!!
"Responsibility" would be the Education Coalition owning up to, and fixing, their mistakes.
They kept their referendum plans secret from even their allies, even though they were filing a referendum petition the next day. This greased the skids for a referendum-proof vote on the second voucher bill. Dumb. Second, they used the wrong tool (referendum) to repeal the wrong bill (HB 148). Dumb. They caused their own problems and drug all of us into it. Who are they listening to for legal advice? Now they want to subvert the Rule of Law to fix their screw-ups, while encouraging their pawns (see above) to blame the legislature. It's the easy way out, maybe, but it's not the right way.
I expect something smarter and more ethical from people in charge of teaching my children.
2 comments on Curt Bramble’s 5/24 post on this site might be illuminating to your readers.
FIRST:
Chris said...
I am so tired of this crap. Let's be clear; we are in this voucher mess because of the "Education Coalition".
The Republican-led Legislature ran a bill (HB 148) to implement vouchers. They were able to get the votes in the House, Senate and Governor's office.
The Education Coalition, a group comprised of the State Board, the UEA, the PTA, etc., asked for some minor amendments to the voucher bill. Some of the changes were clarifications and others were needed and reasonable. They approached Rep Brad Last who agreed to run the changes. He opened a bill (HB 174) and ran the changes. The bill passed the House, Senate and was signed by the Governor.
After the session, as we all know, the Education Coalition decided to file a referendum against HB 148 and got the signatures. However, since they couldn't referendum 174 they got the signatures on 148 and have been whining about the confusion ever since.
This is all a ploy because the Education Coalition knows that the more confusion the better because the referendum question needs a no vote in order for it to be overturned. The confusion is being created by the Education Coalition not the pro-vouchers supporters.
Furthermore, the whole concept of repealing HB 174 is not possible. Each legislative session concepts are put into bills and numbered accordingly. HB 222 in 2005 is different than HB 222 in 2006 and HB 222 in 2007. If a Legislature decides to change a law that was passed in a previous session they open a new bill but are actually repealing actual state code or statute.
Herein lies the fallacy: HB 174 is now Utah State Statute 53A-1a-80x. Why should this language be repealed? What if the pro-voucher side wins? Do we not want criminal background checks for teachers in private schools? Furthermore, the language in 174 cannot be repealed or it does away with the voucher language and takes away the need for a referendum vote. That may be what the anti-voucher crowd wants but it is disingenuous.
The pro-voucher crowd played by the rules and passed voucher legislation. I have no problem with the education coalition pushing a referendum but they asked for 174 and the unintended consequences that came from it will have to be resolved by a court.
Let’s not forget that the confusion concept continues to be pushed by the education coalition. Just today, Sheryl Allen filed an emergency action with the State Board. What’s the purpose of this? More confusion!!
What’s more amazing is that no one is asking why all of the fear from the Education Coalition. 16 million dollars from the general fund to see if a concept can improve our education system; it reminds me of a time when we were all deathly afraid of light rail. We even voted against a funding mechanism but some folks decided to keep pushing the concept and now we can’t vote fast enough for a tax increase for light rail.
It’s not that scary people!!
5/25/2007 10:33 PM
AND SECOND:
The Senate Site said...
We don't blame folks for wondering, it's healthy that they do, but the "sleight of hand" accusation doesn't fit with how we experienced the session.
The legislature passed two bills to try and craft a better voucher program. The second bill made changes requested by the education community. I am unaware of anyone who suspected a referendum was in the works, except maybe the petitioners, and they didn’t send out any smoke signals.
If they had, we probably wouldn’t be in this awkward situation.
Here’s why:
The second voucher bill passed the Senate on the very last day of session. The 2/3 vote in both chambers made it referendum proof. Ten senators who were inflexibly opposed to the voucher program . . .
* Jon Greiner
* Scott McCoy
* Ross Romero
* Gene Davis
* Mike Dmitrich
* Pat Jones
* Kevin Van Tassell
* Fred Fife
* Ed Mayne, and
* Brent Goodfellow
. . . voted in favor of the second voucher bill.
Had the petitioners communicated their plans to file a referendum the VERY NEXT DAY to any of the opposing legislators, it is hardly likely all senate voucher opponents would have voted in favor of the second bill. If just four of them had voted NO on the second voucher bill, it would have been as vulnerable to a referendum as the first one. It would have been challenged too, the signatures gathered, and we would have a clear-cut vote in November.
To "just the facts" anonymous,
You're really buying into this? The facts are simple:
1) The majority of Utahns are opposed to vouchers.
2) A coalition called Utahns for Public Schools gathered the signatures necessary to call a public vote on vouchers. This was done professionally and respectfully.
3) HB174 was never meant to stand alone. Anyone who feels otherwise is free to sue the State Board of Education. The "subverting law" argument is little more than political opportunism at work.
4) The courts will soon weigh in on the language of the referendum ballot. Both sides have requested this clarification.
5) A referendum is a legal, constitutional means to overturn bad public policy. We have the strictest laws in the country when it comes to securing a public vote. But it's been accomplished and vote we shall.
Any attempts to turn the vote of the people into an "opinion" vote or a "good faith" vote to me are unacceptable. The plain language of the bills along with statements from both Republican and Democratic lawmakers clearly and plainly indicate legislative intent. HB174 will be coordinated with HB148 and the people will get their chance to vote on vouchers.
If you support vouchers (which it sounds like you do) then gear up for the campaign ahead and get involved :-)
But in the meantime, attempts to discredit or place blame on the "Education Coalition", the state board, the attorney general, lawmakers, the governor, the Dalai Lama, you name it, do nothing to advance the debate.
I agree with the Senate Site on this--there were no legislative conspiracies or underhanded behavior in obtaining the 2/3 majority. Pointing fingers their way doesn't help.
(I'd suggest that the amendments should have been allowed on the first bill, arguing that if it couldn't pass the second time, it shouldn't have passed the first time.)
To those who claim, "The majority of Utahns (support)/(oppose) vouchers!"... All you're really saying is "I think most people believe as I do, (because I'm reasonable)." In the recent DesNews poll (5/26) , there was no majority either way--each side had 40-something percent, a large margin of error, and a big undecided group in the middle. We *don't* know what the majority of Utahns think. A vote will help, but it'll only tell us what a majority of *voters* think.
Finally, regarding the initiative/referendum question. Suggesting UPS/EdCo should have gone with an initiative instead of a referendum is missing a key point: as I understand the initiative process, the voucher law would've remained active until the next general election (2008). That's precisely what they are fighting against, so an initiative wouldn't suit their purposes. On the other hand, a referendum suspended the law until a vote. It seems saying they should have picked an initiative is finger pointing in a different direction.
No matter who we blame, it doesn't make the situation easier. Let's just get to the business of fixing it. That ball is with the courts for now. Let them play with it.
Tom I agree with the *majority* of your post :-)
Regarding my statement that the majority of Utahns oppose vouchers, I'm not suggesting that those who support vouchers are any more or less reasonable than those who oppose them. I guess I should clarify - Utahns have historically opposed vouchers. The most recent poll you cited was closer than those in the past and indeed does not reflect a simple majority (though it does reflect a majority among those who are not undecided).
Thanks for keeping it real :-)
Craig.
Craig,
You're missing a big point here: bills that pass by 2/3 vote can't be repealed by a referendum.
That's how it works. It's called RULE OF LAW, and it's also the foundation of a functioning free society.
If your buddies down at the office of education want to repeal the voucher program, they still have several options:
1. file an initiative
2. file an amendment to the state constitution
3. persuade current legislators to repeal vouchers
4. get the public to vote out legislators who support vouchers
Just because you get 124,000 signatures, doesn't mean you don't have to follow the rules. As a side note, there are over 138,000 members of the PTA in Utah alone, so the 124,000 signatures isn't saying much, especially when they were using our public schools and publicly funded infrastructure to pump out signatures.
As I think more about it, the people who filed the referendum probably understood all of this before filing, but they knew that a referendum was their only chance to keep the program from ever going into effect because as Tom pointed out "that's precisely what they are fighting against."
Let's not let the means get in the way of the ends!
So they pushed for the referendum in hopes to finagle the public, the media, the politicians, and most importantly, the courts into thinking that their referendum was legitimate (despite the clarity of the law) and that anyone who opposed their referendum was anti-democratic and underhanded in every possible way, when in fact, they're the ones that are doing everything they possibly can to subvert the rule of law and our state's constitution!!
I wonder why the Senate Site chose to use the words "education entrenchment," especially given the rules of etiquette the "Boss" laid down a couple of months ago -- the same rules the Senate Site keeps stressing in response to anti-voucher posts.
Craig: Please discard "fact" number one. Did you miss that article in the Deseret Morning News showing that the opposition to vouchers is 47-43 with a 5% margin of error? That's far from definitive support for either side and nobody can claim majority support.
Seems pretty clear that to challenge the whole voucher law, they should have used the correct tool -- the Initiative process. Indeed, they still can. The initiative and referendum are too sacred to allow any bending of the rules just to excuse a mistake, no matter how innocent.
I'm really confused as to why Utah'ns for Public Schools don't just own up to accidentally accepting bad legal advice, starting over and setting the initiative for the next general election against both bills. Problem solved -- mess cleaned up. With the huge organizations they have, it should be a piece of cake.
Dave,
I had a whiz-bang response to you on Friday but when I went to post it Blogger went down for "maintenance" and it was lost. I'll try to recreate it the best I can.
Your conspiracy theories of those who are opposed to vouchers are as unfounded as those who claim that legislators manufactured HB174 to "referendum proof" HB148.
Like you, I strongly believe in the rule of law. The interpretation of that law is what's up for discussion. Both sides have asked for clarification on the ballot language - possibly leading to a resolution on the relationship between HB174 and HB148. We all have our opinions on that question though I think the common sense language in HB174 along with statements from Republican and Democratic lawmakers clearly indicate that HB174 on its own does not equate to legislative intent.
And it's not as easy as you think getting 124,000 valid signatures, regardless of the size of the team. The experts told us we would need to hire paid petitioners. They were wrong.
Regarding the rest of your post - an initiative would have taken too long. The program needs to be stopped now. The constitution does not need to be amended - it already prohibits sectarianism in our public education system. And legislative repeals are costly and are rare indeed. Furthermore, I don't believe in voting lawmakers in or out on a single issue. I'll leave that type of advocacy up to folks like Parents for Choice.
That didn't turn out to be as whiz-bang as the first try. Thanks for your comments.
I applaud the legislature for taking this bold and unpopular move to support vouchers, in oposiiton to many edcuator's beliefs. Our public school system in Utah is failing our children. If it weren't for the charter school program that instituted by the legislature yeara ago, my son would be three years behind in math concepts, with the rest of the children in our neighborhood.
I am very disappointed that the State Board of Education, and many educators, do not support vouchers, which incorporates the same principles, supply and demand, that work so well in other parts of our society in improving quality.
The fear of uncertainty of these educators exhibits itself through a cry for "the children". However, I have yet to hear a compelling argument from this group for the children--from the very people that claim they know our children so well. Usually, the comments center strictly around the discomfort educators will feel when the game they have played for decades now has to change. This is done through distractions, smoke, mirrors,
Craig,
I don't have a whiz-bang reply for you. But I do want to thank you for confirming some of my previous comments. As you said "an initiative would have taken too long."
So in other words, when you, Wayne Holland, Vik Arnold, Kim Burningham, Pat Rusk, Sara Meier, Carol Lear, a rep from the NEA, and some initiative "expert" got together to discuss how to stop vouchers from ever-going into effect, you did exactly what I thought you did.
You knew that an initiative would let the program go into effect, so you went for a referendum to try and stop vouchers from ever being implemented (while simultaneously dashing the hopes of a thousand families looking for the freedom to finally put their kids in a school they chose and not some bureaucrat).
The catch was that you were gambling on whether or not a referendum could stop HB 174, but you had nothing to lose, so why not move forward with it? You already had the School Board and SL Tribune on your side to do any messaging you might need, so why not?
By gathering 100,000+ signatures, you would finagle the public into thinking that everything about the referendum was legitimate, and if anyone questioned the legality of what you did, you would just smear them as being against the "will of the people", just like you did to the Attorney General.
But even if the courts end up agreeing with the AG's opinion, you'll move forward with the referendum anyway, claiming that it's still a legitimate up and down vote on the entire voucher program, when in fact, it isn't.
If that doesn't work, then you'll pursue the constitutionality route through a lawsuit, which in my mind would have always been cheaper than a referendum, but let's not forget you're number one goal: stop vouchers from ever being implemented because who wants to be seen forcing poor kids to leave the school that their parents decided was best for them? Worse yet, what if the voucher program actually worked? Heaven forbid!!
And if this doesn't work, then you'll go for an initiative.
In the meantime, you won't try to boot out any of these voucher-loving legislators because we all know that the Democrat Party in Utah has no interest in gaining more seats. That's why you barely have one third of the seats in both Houses, right?
But even if you did want to remove some of the Republicans, you, as the Democrat Party, couldn't do it, so instead, you'll happily let the UEA stack as many Republican caucuses as possible so that they can get their union buddies nominated in convention.
Golly, who needs Democrats when you got UEA moles to do the work for you? And don't pretend they don't. We've all seen the memo from the early 80's where the UEA made it an official plan to have their members infiltrate the Republican Party because the power was shifting towards the conservatives.
Dave,
Quite the feisty reply :-)
A quick note - my opinions are my own and I'm really not qualified to address your conspiracy theories. Based on your posts I imagine you're going to believe what you want. I'm happy, though, to count myself among those who understand that vouchers are the wrong choice for Utah families.
My own concerns with vouchers are wide-ranging. There are significant accountability issues with the bills that were passed that, in my view, all taxpayers should be concerned about. There are troubling long-term fiscal and societal impacts with such schemes. Voucher apologists across the country are expecting Utah to start a zipper effect with this bill. So yes, I absolutely think the program needs to be stopped cold. Why proliferate bad public policy?
I've had my say on these issues over at The Utah Amicus - feel free to stop by anytime.
I really don't see conspiracy-like behavior from either side. I don't view elected school board members as bureaucrats and I couldn't care less about "UEA infiltration" of Republican caucuses. What we have is the political process at work with two passionate viewpoints being debated and with both sides playing their hands.
But make no mistake that all of us care, deeply, about the education of all Utah schoolchildren. I am happy to extend that same courtesy to you because I'm sure it's true.
Can someone tell me specifically why vouchers are a bad idea, or hurt our kids? I'm seriously asking. I've heard generalizations, but nothing detailed. I've seen for myself working in our public education system for years why a voucher program could be beneficial. Before I make up my mind I really want to understand the anti-voucher reasoning. Can anyone help me out here? Anyone, Anyone, Bueller?
As a single Utah mom I think school vouchers are a great ideal. Why shouldn't all kids have the right to a good education. If anything it will make our public schools better. I have heard they do not have the funds and I personally think thats a bunch of bull. If they don't have the funds how are all of our public officials stealing the public money? I want the vouchers. I think anyone with the kids best interest in mind would too.
Hello Strawberry,
I think that someone deserves to answer your question about why vouchers are a bad idea.
I would love a short answer to that question as well. For me - and I have not read everything, so can't say for sure - but, it appears to be a bad idea for teachers, administrators, PTA, UEA, NEA, etc...
I know that all of these are real people, but should they really be the focus of the education debate? I am not in any way vilifying these people - they try hard, they care, they word hard, etc... But are they the focal point?
Notice that the pain and misery of the voucher is not being inflicted on children (again, at least as far as I can read)?
From what research I have been able to do, it appears that private schools typically out-perform public schools scholastically and in social behavior problems. Again, I am not here to demonize or vilify the public school system, but I think that there is an Emperor here running around with his new clothes and no one wants to face the hard facts.
Public schools are struggling - and they have been for years now. Test scores are down, behavior issues are up, many, many teachers are frustrated at all the rules and regulations and red tape.
Yet, in all of this, many students are doing great in public schools. It is a reflection of the wonderful, dedicated teachers and administrators that are doing their best. It is a positive reflection on parents and students that are doing their best. But, how many students are not making it! How many are struggling inside of that system!
The voucher program may not be the final and best answer in the world, but it appears to compassionately look at those children and those families that are struggling and attempts to give them a hand-up.
In doing so, does it harm those who choose public schools? I cannot see where it does. But, I don't know everything.
Like my strawberry friend, I'd love to hear from the anti-voucher crowd a simply explanation of how giving some students an environment better suited to their individual needs, destroys the educational opportunities of children in public schools. I would like to understand how a public school teacher would suddenly do a worse job teaching and disciplining with a few less students in their classroom. I'd like to know how administrators would suddenly have their hands tied and their effective efforts stifled because of an enrollment decrease.
Let's set the politics, power, money, and heated arguments aside and let's have a frank discussion about the children. Not the masses, not the system, not the "they"... let's just hear how this will hurt... or help... the individual child.
Once those questions are answered, I believe the rest will fall into place. If we do the right thing for the individual child, the rest will resolve itself.
“Men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing had happened.”
-- Winston Churchill
As for an argument against vouchers, here is a link to Kim Burningham's opinion. Please know that my linking to that does not mean I agree with it.
Also someone above suggested that polls have not indicated a majority one way or another on the voucher issue. The DMN 5/26 story doesn't really go to the issue of whether people support vouchers or not, at least as far as I see.
However, DMN story from back in March seems to show that 39% of Utahns strongly(26%) or somewhat(13%) favor vouchers, while 56% strongly(44%)or somewhat(12%) oppose vouchers with 4% undecided and a 5% margin of error. So if 100% of the undecided went with the favor and the entire 5% error came out of against and went to favor, the persentages would end up 49% in favor and 51% opposed. That is what a statistitian would call a worst case senario based on his poll and it still indicates a majority against vouchers.
Another interesting point from that DMN article from March was that 80% indicated that they would sign the referendum if given the opportuinty. When asked how they would vote it broke down about like the above quoted numbers. But think about that, 80% of Utahns want a vote on vouchers. And 79% want a special session for the legislature to 'fix' the issue so it is a clear up or down vote.
As for the debate between referendum and initiative, after the last initiative that got on the ballot, the legislature decided to basically make sure that never happened again. They made the requirements so difficult that it I believe it will take a very well organized and extremely well funded effort to ever get another inititive on the Utah ballot (not that I don't think the NEA,UEA and PTA couldn't organize and fund one well enough to do it, but even then it would be difficult).
Now I expect the legislature to see a bill next year tightening the already strict requirements for a referendum so that they make sure the people never have the opportuinty to question their power again.
One more thing about HB 174, here is language used to describe what HB 174 was intended to do. Remember this is language that legislators relied on when deciding what this new law does.
7 LONG TITLE
8 General Description:
9 This bill modifies a program to award scholarships to students to attend a private
10 school.
11 Highlighted Provisions:
12 This bill:
13 < modifies criteria for qualifying for a scholarship;
14 < modifies criteria for private schools to enroll scholarship students;
15 < modifies provisions relating to the State Board of Education; and
16 < modifies the review by the legislative auditor general.
17 Monies Appropriated in this Bill:
18 This bill appropriates:
19 < as an ongoing appropriation subject to future budget constraints, $100,000 from the
20 General Fund for fiscal year 2007-08 to the State Board of Education.
21 Other Special Clauses:
22 This bill coordinates with H.B. 148, Education Vouchers, by providing substantively
23 superseding amendments.
24 Utah Code Sections Affected:
25 ENACTS:
26 53A-1a-804, Utah Code Annotated 1953
27 53A-1a-805, Utah Code Annotated 1953
28 53A-1a-806, Utah Code Annotated 1953
29 53A-1a-808, Utah Code Annotated 1953
I have to say that even though the last 4 lines say it 'ENACTS' sections, this definately seems to be an amending bill rather than an enacting bill.
After reading all that proponents still believe 174 was intended to enact vouchers?
This is a great debate and I appreciate being able to see both sides. Let's remember that both voucher bills were passed because this debate has been going on for many years. Each year a voucher bill is discussed and defeated. This year, finally, we have a law that mitigates many of the concerns from years past, which have always resulted in it’s demise.
Again, this bill is about giving parents a choice. Choice is a word that some would like to turn into a pejorative. Choice equals hope for hundreds if not thousands of families who are left on the outside looking in when it comes to educating their children. My two oldest children have learning disabilities that don’t allow them to learn the same way that most children do. After struggling with the local school for over two years, our BEST HOPE was to put them into a private school. They are thriving now. We have done this at great personal sacrifice. In fact, the great majority of the families at their school are stretching very thin budgets to allow their children the very best opportunity to succeed. There are many who can’t even hope to make this choice because of financial constraints. By the way, as the voucher law is written, those who currently have their children enrolled in private schools are the first to be disqualified from participation with vouchers in perpetuity.
I understand all the legal and political jockeying. Let’s just not lose sight of the fact that this is about educating children. It’s not about an eroding power base. The law is not a hairbrain scheme that’s being forced on Utahns, but a well thought-out way to mitigate some of the problems in the current educational system. It’s not about money, it’s about hope, and it’s about children. They are our future. Why are we holding onto the status quo for dear life?
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