Hundreds of voucher supporters went wild upon hearing the news during a rally at the state Capitol complex Tuesday. Parents for Choice in Education, the political action committee that lobbied heavily for the program, held the rally to urge implementation of the program. The law requires the state school board to make voucher applications available to parents as of Tuesday.
"The rally, combined with the most senior legal authority in the state, is demanding they implement it," spokeswoman and emcee Leah Barker said.
State school board Chairman Kim Burningham, who received a faxed copy of Shurtleff's letter while on vacation in Oregon, didn't read it that way.
"I don't take it as an order," he said. "That's his opinion."
The board opted at its May 3 meeting to seek legal advice before attempting to implement a voucher program using an amended version of the original law that remains on the books but omits key provisions. Both versions of the law provide $500 to $3,000 in private-tuition assistance for all low-income families or any family whose children are not currently enrolled in private school.
Voucher opponents and attorneys at the State Office of Education contend the remaining law has too many holes for a program to be responsibly implemented and leaves the board vulnerable to lawsuits.
But an earlier opinion from Shurtleff's office said the remaining law has enough meat to start a voucher program, albeit one that would be more vulnerable to legal challenges. The state school board last week submitted a list of questions and requested a second opinion specifically addressing its legal abilities to move forward. It also asked whether Shurtleff's office would represent the board if a lawsuit ensued.
In Shurtleff's response letter mailed to the board Monday, he clarified his role as the "constitutionally designated sole legal adviser" to the board. He also said he's granted "special assistant attorney general" status to state education office attorneys Jean Hill and Carol Lear "to advise the Board, but only under my direction and supervision."
Shurtleff then advised the board to implement the remaining law because "all legislation is presumed valid until it is stayed or overturned by a court . . ." The final paragraph began, in bold type, "In conclusion, it is incumbent upon the Board to implement the voucher program through HB 174 immediately!"
Shurtleff said his office would respond "with all due speed" to formal questions from the board when it received them. His letter was dated May 11, the same day the board mailed 25 legal questions to his office.
State school board member Debra Roberts of Beaver, chairwoman of the board's law and policy committee, had not received the letter Tuesday but reacted to the above mentioned portions.
"Personally I've got to have answers to the questions we sent. . . . Until they are answered we can't move forward," she said. "If he's our legal counsel, [he should] give us good advice, don't just order us to do something."
Burningham had urged members to prepare for a possible emergency meeting later this week to discuss legal representation but hasn't yet called for one.
At its last meeting, the board resolved to ask Gov. Jon Huntsman Jr. to call a special session so lawmakers could "unmuddy the waters" by repealing the second law until the original voucher act is put to a public vote.
"It is unlikely that a special session will be called," spokesman Mike Mower said Tuesday. "We anticipate they will respect the recommendation [Shurtleff] provides and that will provide direction on how they will proceed."
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* NICOLE STRICKER can be reached at nstricker@sltrib.com or 801-257-8999.
Voucher standoff
* THE ISSUE: Whether the Utah Board of Education should implement a voucher program based on partial legislation remaining in Utah code. The board voted May 3 to seek legal counsel.
* WHAT'S NEW: Attorney General Mark Shurtleff, calling himself the designated sole legal counsel for the board, ordered it to implement the program in a letter sent Monday.
* WHAT'S NEXT: The board may call an emergency meeting later this week to discuss the letter and the board's options.
Read the full text of Utah Attorney General Mark Shurtleff's letter at www.sltrib.com.
Ballot language submitted to Lieutenant Governor's Office
Citizen's State Referendum Number 1
In February 2007, the Utah Legislature passed HB148 Education Vouchers. This bill will take effect only if approved by voters. The bill:
* Establishes a scholarship program for:
- qualifying school-age children who newly enroll in eligible private schools; and
- lower income school-age children who continue their enrollment in eligible private schools;
* Provides for scholarships within that program of $500 to $3,000, depending on family size and income, increasing those scholarship amounts in future years; and
* Allows school districts to retain some per-student funding for scholarship students who transfer to private schools.
Are you for or against H.B. 148 taking effect?"
