Critics of partisan school board elections in Utah argued in court Wednesday that a constitutional prohibition against a “partisan test” for school employees extends to members of the state Board of Education.

But Thom Roberts, an assistant attorney general, said no such test exists under current law, since members of any political party and independent candidates are free to run and be elected in next year’s partisan school board elections.

“There’s no requirement that a board member be from any particular political party, or can’t be from one,” Roberts said in arguments Wednesday in Utah’s 3rd District Court. “That’s what we think of when we think about a partisan test.”

At issue is Senate Bill 78, which lawmakers approved in 2016 and which makes state school board elections partisan beginning with next year’s campaigns.

School board elections were nonpartisan prior to 2017, and SB78 followed years of legislative stalemate after the state’s prior method of empowering the governor to select nonpartisan candidates was struck down in court.

A group of individuals and organizations — including current school board member Carol Lear and the Utah Parent Teacher Association — sued Utah Lt. Gov. Spencer Cox over the law, arguing that it violates a section of the Utah Constitution that prohibits the use of religious or partisan qualifications for employment, admission or attendance in public schools.

Utah Constitution Article X, Section 8

No religious or partisan test or qualification shall be required as a condition of employment, admission, or attendance in the state's education systems.

Alan Smith, an attorney for the plaintiffs, said elections are the mechanism by which school board members are hired to the job of governing Utah’s public education system.

“They are given salaries, they are given benefits, they are subject to some of the same penalties as ordinary employees,” Smith said. “Administratively, they are certainly treated as employees.”

And both state history and legal precedent, Smith said, suggest the “popular mind” behind the constitutional language intends the school board to be nonpartisan.

Smith referred to a 1950 amendment to the Utah Constitution, ratified by voters, which ended the practice of electing a partisan state superintendent to oversee public schools. As a result, that position is now appointed by the Utah Board of Education, making the board the governing body over public education.

“Surely they didn’t intend to substitute a partisan [school] board in its place,” Smith said. “They wanted the same and consistent result — to take politics out of schools.”

Roberts critiqued the idea of schools being free of political influence. Even when elections are nonpartisan, he said, there’s no prohibition against candidates who are privately or publicly affiliated with a political party.

“Is that unconstitutional?” Roberts asked. “Was that improper to have a partisan, someone affiliated with a party, elected?”

And the 1950 amendment only addressed the election of the state superintendent, Roberts said. Prior to that amendment, he said, the Utah Legislature was empowered to define the election system, as they are now with the Utah Board of Education.

“There was nothing in the Constitution prohibiting a partisan test with regard to the superintendent and board,” he said.

(Al Hartmann | Tribune File Photo) Members of the Utah Board of Education vote to appoint a new state superintendent in 2014.

Wednesday’s hearing was the first in the case, Richards v Cox, and regarding motions for preliminary injunction and summary judgement.

Smith said both sides are looking for an expedited process, as appeals are likely and the filing process for candidates begins in January.

“Whichever side loses today will want to take it further,” Smith said.

Third District Court Judge Andrew Stone made few comments during the hearing, but directed attorneys to address the issues of what a “partisan test” entails and the question of whether school board members are employees of the education system.

“I am conscious of the urgency regarding this decision,” Stone said. “We’ll get something out quickly.”