It's doubtful but not impossible that Utah will have a functioning school voucher program by fall after the Utah Board of Education on Thursday opted to seek legal counsel before adopting rules to set up the program.

Upset by the delay, voucher supporters expect a lawsuit.

''Anything's on the table considering that they're not abiding by the law,'' said Leah Barker, a spokeswoman for Parents for Choice in Education. "I hope this isn't another tactic to delay the thousands of moms and dads who [want vouchers]."

The state's Parent Choice in Education Act, the broadest school voucher program in the nation, is on hold pending a public vote after voucher foes collected enough signatures to force a referendum on the matter. Yet a second law, which amended the first, remains on the books and could be applied to start the program, according to an opinion from Utah Attorney General Mark Shurtleff.

That opinion, while not legally binding, could give the state school board legal cover to move forward, Kristina Kindl, an education specialist in the A.G.'s office, told the board's law and policy committee.

Yet most board members were more comfortable missing a May 15 deadline than possibly overstepping their authority to fill gaps in the second law, which lacks several key provisions from the first. The board also decided to ask Gov. Jon Huntsman Jr. to request a repeal of the second law - commonly referred to by its bill name, HB174 - until the public votes vouchers up or down.

"I'm not willing to fill those holes without [answers to the] legal and ethical questions," said Debra Roberts, a board member from Beaver. "All we're saying right now is, why are we going through all this process if we can ask the Legislature to do the honorable thing and pull back until the public votes."

The voucher law would provide $500 to $3,000 from Utah's general fund to help parents of public school students pay for private school tuition. To enact the law, the state school board must adopt a policy rule outlining how staffers will implement and oversee the voucher program.

A draft rule based on the original law was poised for final passage Thursday. But with the original law on hold and facing a public repeal, the rule has no foundation, said Jean Welch Hill, a lawyer at the Utah Office of Education.

The remaining law lacks key definitions and enforcement language, which would require the board to make big policy decisions, possibly outside its authority, to craft a workable program, Hill said.

For example, HB174 lacks a definition of "income eligibility guidelines" referred to throughout the bill. The board could be vulnerable to a lawsuit if it chooses guidelines that are later challenged by a parent, Hill said. HB174 is riddled with such pitfalls, she said.

But voucher supporters aren't buying it.

"They constantly [write rules] beyond the law and feel very comfortable doing that when it's something they support," said Carolyn Sharette, director of Draper's American Preparatory Academy charter school.

Several board members - namely Mark Cluff of Alpine, Thomas Gregory of Provo and Bill Colbert of Draper - wanted to move forward to avoid missing a statutory deadline to have a rule in place by May 15.

"We have substantial authority, even if it's not granted by code, and we have a responsibility to [move forward] even in the face of a code with holes in it," said Gregory. "Filling those holes, I think, does rest with state Board of Education."

Hill said the board would probably win if it were sued for missing the deadline.

"You've made a good faith effort to meet that deadline," she said. "An act that no one predicted has intervened in that time."

She said the board would be on less stable ground if it rushed to fill gaps to implement HB174 alone, which could trigger a suit alleging the board overstepped its authority to implement an incomplete law.

"Agencies that just throw something into place lose [lawsuits]," she said. "These are the lawsuits you're going to face - as a board you need to decide which you want to be involved in."

The group behind the referendum thought the board made the right call Thursday.

"The state board is operating very responsibly," said Sarah Meier, a member of Utahns for Public Schools, which launched the referendum drive.

Others wanted the board to be a bit more bold.

"It appears there is a glimmer of legal standing to proceed ahead," said Kathleen Leonard from Our Lady of Lourdes Catholic School. "I realize the pressure you're under but I would ask you to go for it and . . . make this work."

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* NICOLE STRICKER can be reached at nstricker@sltrib.com or 257-8999.