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Utah school board candidate sues over process

Published June 16, 2014 9:40 pm

Education • He says that the process to get on state school board is unconstitutional.
This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

A rejected state school board candidate is suing the governor, saying he and others shouldn't have been knocked out of the running because of their opinions.

Breck England, who had hoped to fill the board's District 5 seat, filed the lawsuit Thursday against Utah Gov. Gary Herbert, Lt. Gov. Spencer Cox and members of a committee appointed by the governor to narrow the field of candidates. In the suit, England alleges the committee practiced "viewpoint discrimination," in violation of the First Amendment when selecting candidates.

He says the entire process is unconstitutional.

The lawsuit says current laws leave the committee and governor "unchecked in their practice of viewpoint discrimination." The governor-appointed committee is tasked with narrowing the field of candidates to at least three for each seat. The governor then chooses two for each seat to appear on the ballot.

The committee asked candidates questions about the roles of the state school board, education funding and other issues when winnowing the field.

"This lack of constraints, in turn, means that there is no way to ensure that candidates, like England, will not be refused a place on the ballot because of opinions which they otherwise should be free to express under the First Amendment," according to the lawsuit.

An official in the Governor's Office declined to comment Monday, saying the office had yet to be served with the lawsuit.

Nolan Karras, a former Utah House speaker who chaired the selection committee, also said Monday he didn't want to comment on the lawsuit's specific allegations as he had not yet been served. But he said the process of narrowing candidates is a difficult one.

"It's not one that's easy, and I think we tried to do absolutely as good a job as we could, but it appears to me it's a subjective process," Karras said.

Karras said the group of candidates who filed for the District 5 seat (which includes much of Davis County) were particularly impressive. Eighteen people originally filed for that one seat, which is being vacated by retiring board member Kim Burningham.

England did not say in the lawsuit which of his viewpoints he believes might have got him kicked out of contention. Attempts to reach England for comment Friday and Monday were unsuccessful.

But England's attorney, Alan Smith, said he suspects it was because he was "too pro-public education for them."

Smith, however, said the fundamental flaw with the process is that there's no way to test whether candidates were chosen or rejected based on particular viewpoints.

"[You] have two governmental entities, the governor and this commission, that when making their choices just get carte blanche," Smith said. "That just is a such a dangerous situation in terms of the First Amendment. … Are you going to let the government decide which candidates with which policy views get to speak or don't get to speak in terms of standing for election?"

Lawmakers and education leaders have criticized the state school board selection process for years, and this is not the first legal challenge. Lawmakers, however, haven't been able to agree on whether to change the elections to make them partisan or keep them nonpartisan but make them direct.