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Utah's school voucher controversy has turned into a legal chess match, and the Utah State Board of Education gets the next move.
Rep. Sheryl Allen, R-Bountiful, a voucher opponent, on Tuesday will ask board members to issue an order saying they cannot and will not implement a partial voucher law that remains in Utah code. Alternatively, the board could decide to heed Utah Attorney General Mark Shurtleff's advice - spelled out in 20 pages of answers to the board's legal questions - and implement a voucher program.
Either move is likely to bring a lawsuit from advocates on one side or the other of the school voucher debate, which all sides agree is the only way to resolve the matter.
"We've got to get out of this no-man's land," Kim Burningham, the state school board chairman, said Friday.
The board has waited to be sued since its May 3 meeting, when it decided against implementing the program.
That action was driven by a successful referendum petition that shelved the Parent Choice in Education Act pending a Nov. 6 public vote. Left on the books was a second voucher law that amended the original law, re-enacting key provisions but leaving out others. Board members said they needed legal advice before implementing the incomplete law and submitted nearly 40 questions to the Attorney General's Office, which is the school board's legal counsel.
Voucher opponents applaud the board's decision not to implement the remaining law, saying it can't stand alone and voters should get to decide vouchers' fate. Voucher supporters want the board to offer vouchers based on the remaining law, yet they haven't filed a legal challenge.
Shurtleff sent answers to the board's questions Wednesday and reiterated his advice to follow the law and launch a voucher program. The board released his response Friday as part of the information packet board members received for Tuesday's meeting.
The packet also included Allen's petition. The 48-page document asks the board to issue an order saying it cannot implement the remaining voucher law. If voucher supporters appeal that order, the matter would go directly to the Utah Supreme Court for a decision.
The board will receive presentations of its options Tuesday and hear public comment before retiring to an executive session and later returning to an open meeting to consider action.
"What I see is, No. 1, board members might vote to implement [the remaining law]," Burningham said. "They might also just decide to stay where we are and pursue the questions further. Or they may take an action to refuse to implement."
Meanwhile, voucher supporters who want the referendum ballot language changed are waiting for the Supreme Court to respond to their request, first by postponing the June 1 deadline for submitting pro and con arguments for voter information pamphlets. The court hasn't yet set a hearing date, but it did set a Tuesday deadline for responses from the Office of Legislative Research and General Counsel and Lt. Gov. Gary Herbert, the parties targeted by voucher supporters' legal action.
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* NICOLE STRICKER can be contacted at nstricker@sltrib.com or 801-257-8999.
The Utah Board of Education will hear comments from the public when it meets at 250 E. 500 South, Salt Lake City, at 10 a.m. on Tuesday to discuss its next move on vouchers.
* THE ISSUE: Whether the board will implement the voucher program using an incomplete version of the voucher law still in Utah Code.
* WHAT'S NEW: The board has said it will weigh Attorney General Mark Shurtleff's advice to implement vouchers against a lawmaker's request that it issue an order saying the program cannot be implemented.
* WHAT'S NEXT: A decision is expected when the board meets at 10 a.m. Tuesday.