This is an archived article that was published on sltrib.com in 2007, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
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.
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* NICOLE STRICKER can be contacted at nstricker@sltrib.com or 801-257-8999.
Would give families with children in public school state money to spend on private school tuition
What's next: The bill awaits Gov. Jon Huntsman Jr.'s signature.
"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.
School vouchers challenge:
"The federal constitution doesn't have the same direct language as Utah's constitution does."
ROB BOSTON
Representing Americans for the Separation of Church and State, noting that Utah's Constitution is more explicit in directing whether public money can be used to fund education at parochial schools.