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Attorneys say Utah can't block $101M in school aid

Published September 3, 2010 2:36 pm

Education • Success for Utah in rejecting money borders on 'close to zero,' attorney says.
This is an archived article that was published on sltrib.com in 2010, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The chances of Utah going to court to try to refuse $101 million in federal education money appear to have been dashed Thursday by a dismissive legal opinion from the Attorney General's Office.

Assistant Attorney General Jerrold Jensen said in the opinion that the chance of the courts finding the law unconstitutional is "about as close to zero as one can get."

That view was reinforced by a similar opinion from the Legislature's general counsel that also said the prospects for succeeding are unlikely.

"It appears our original analysis of 'slim and none' might have been the upside of our prospects," said House Speaker David Clark, R-Santa Clara.

The Education Jobs Fund of 2010 allocates $10 billion to states in an effort to keep recession-stricken schools from laying off teachers. If states refuse the money, the law allows the U.S. Department of Education to send it directly to the school districts.

Utah stands to get $101 million, which could prevent the loss of some 1,600 education jobs, according to state officials. The White House has estimated it would save 1,800 jobs.

But a majority of the Utah House Republican caucus voted to explore whether the state could refuse the money and go to court to prevent it from going to districts — arguing that it was unconstitutional for Congress to usurp the Legislature's budget authority.

While Clark said the process that Congress used "is completely distasteful for us here in the Legislature," the legal opinions and Gov. Gary Herbert's decision to seek the funds mean the Legislature will yield the fight and work to spend the money wisely.

Clark and Senate President Michael Waddoups, R-Taylorsville, sent letters to every school district in the state, as well as the State Office of Education and the state school board, urging districts not to budget the money until the Legislature approves it, but they asked each district to report back on how they anticipated spending the funds.

At the same time, they urged the districts to be cautious and avoid committing to long-term programs that might require future tax increases to sustain.

The governor will likely have to call the Legislature into special session in October to allocate the money.

And half the money may be spent by the Legislature, which could use it to plug a nearly $50 million hole in the state budget, Clark said.

Rep. Carl Wimmer, R-Herriman, who agitated the caucus to pursue the legal option, said the state needs to resist the federal intrusion somehow, but he wouldn't say if he still supports a lawsuit until he has read both opinions.

"Even with a slim chance of success, do I think we need to continue to pursue some kind of action to prevent the commandeering of our legislative officials and citizens of this state? Absolutely," Wimmer said.

He said Congress has done away with local representative government and "if there's not an argument to be made there, then that is a frightening statement as to how far down this road to a large centralized government we have gone."

The opinions from the attorneys were straightforward: The powers that Congress exercised in allocating the education funds were well-established in the spending clause of the U.S. Constitution. Court cases that claimed that authority circumvents the state's have failed.

And the 10th Amendment only reserves rights to the states that aren't delegated to Congress, but the Constitution explicitly gives Congress the power to spend, wrote Jensen of the Attorney General's Office.

Legislative general counsel John Fellows wrote that, while the 10th Amendment is "not dead," it isn't seen as a strong barrier to federal action.

Jensen wrote: "The ultimate choice here is really that of the governor." If he declines the money, it would go to the schools. "Either way, the choice to accept or reject the money is really not that of the Legislature."

If lawmakers passed a bill refusing the money or blocking districts from spending it, the federal pre-emption of state laws would require it to be released.