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Great school-choice news from Utah

A divided Legislature approved one of the nation's broadest voucher programs Friday, allotting up to $3,000 for any public school student to put toward private school tuition.

Voucher programs in the handful of other states that have them generally are aimed at poor families or students attending schools that have poor academic records. There will be no such restrictions in Utah, which has the largest class sizes in the country and until now has spent less per student than any other state.

The Senate approved the bill 19-10 on Friday, a week after the House endorsed it by a single vote, 38-37. Both chambers are controlled by Republicans. Gov. Jon Huntsman, a Republican whose children attend public schools, has said he will sign the bill into law.

The vouchers will be open to any of Utah's 512,000 public school students. The amount will depend on family income, but even affluent families would be eligible for at least $500 per child. Students already in private schools would not be eligible.

The plan, which goes into effect this fall, is expected to cost $9.3 million in its first year and $327 million over 12 years. Utah has a $1.6 billion budget surplus. Public schools that lose enrollment will still receive a portion of state funding for five years after each student departs.

The bill's sponsor, Republican Rep. Stephen Urquhart, tried to alleviate concerns that public schools would be shortchanged. In Utah, income taxes must pay for public education. The money for vouchers would come from the state's general fund, which pays for all other state programs.

"What thrills me is that we're providing an option without impacting public education," said Republican Sen. Pete Knudson.

Nearly every education organization in the state, especially the teachers union, opposes the program, saying tax dollars should not be spent at private schools.

"This has nothing to do about educating children. ... It's about taking taxpayer dollars and giving them to private industry," said Sen. Gene Davis, a Democrat.

Ohio, Wisconsin and the District of Columbia offer publicly funded voucher programs, according to the National Conference of State Legislatures. Ohio and Utah also offer vouchers for special education, as do Arizona and Florida.

Fight over voucher program may not be finished
Proponents say the courts are on their side; opponents point to the state constitution

The nation's most expansive school voucher bill may have flown through the Legislature with lightning speed, but its future is far from certain.

    Questions surrounding the program - the first of its kind in the nation in both size and scope - include cost, practicality and constitutionality.

    Advocates on both sides of the constitutional question have pleaded their cases to lawmakers and the public, but only the courts can say for sure whether Utah's voucher program will survive a challenge should Gov. Jon Huntsman Jr. sign it. Several sections of the Utah Constitution seem to prohibit the voucher program, but those clauses have never been tested in court. And Utah's bill contains language that saved vouchers in other states.

    The most obvious question is whether a voucher program violates the separation of church and state by letting public tax dollars flow to religious schools. When 96 percent of Cleveland parents used their vouchers at parochial schools, a group of taxpayers took their objections all the way to the U.S. Supreme Court. In a 5-4 decision, the court said vouchers were "neutral with respect to religion" because parents, not government officials, chose where to spend school vouchers.

    Supporters of Utah's voucher bill routinely cite that 2002 decision. State courts have handled voucher challenges since then, and both Florida and Colorado struck down voucher laws that conflicted with specific state constitutional language. Utah's unique fight for statehood generated much stronger wording regarding the separation of church and state.

    "The federal constitution doesn't have the same direct language as Utah's constitution does," said Rob Boston of Americans for the Separation of Church and State.

    One section of Utah's constitution says, "No public money . . . shall be appropriated for or applied to any religious worship, exercise or instruction or for the support of any ecclesiastical establishment." Another 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."

    Such blunt language "could be fatal to this voucher legislation," according to Boston. But pro-voucher Parents for Choice in Education say vouchers don't constitute direct funding because parents choose where to spend the money. The group also points to a past Utah case that said indirect funding of religion - such as fire protection for churches - is constitutional because religions are just one of many groups receiving services.

    Other concerns include parts of the Utah constitution saying "designated public education systems" must be equally available to all students and can't use religion to guide admission. Neither condition is guaranteed by the current voucher bill.

    Legislative attorneys review bills that may have "constitutional issues," including the 2007 voucher bill. But with few legal precedents, it is impossible to predict how Utah courts will rule, said Dee Larsen, counsel for Utah's legislative education committees.

    Talk of a constitutional challenge is in the air, but those discussions remain largely hypothetical, said Barry Newbold, Jordan School District superintendent. Challengers could either seek an injunction to stop the law from going into effect until any legal challenge is decided or wait until after voucher money starts flowing this fall to file a suit, said Ed Firmage, a constitutional law professor emeritus at the University of Utah.

    In general, constitutional challenges are usually filed by an individual or group of individuals who have "standing," meaning the law directly harms them, several legal experts said. A challenge is more likely to spring from a group of parents or citizens represented by an advocacy group such as the ACLU, Firmage said. While the state Office of Education or individual school districts could have standing to sue, they likely wouldn't for fear of retribution from the Legislature, he said.