Gov. Spencer Cox signed a bill Wednesday that has raised concerns about government overreach by granting legislative leaders the power to sign off on individual school closings due to COVID-19 outbreaks.
The measure, HB183, has drawn pushback from teachers and district administrators, as well as prominent attorneys in the state. They say it impedes a school’s ability to react quickly to a surge in virus cases, takes away their local authority and potentially violates the Utah Constitution.
But in a statement explaining his signature, Cox defended the proposal that is now law. He repeated his stance that in-person learning is “critical” for students, even during the pandemic.
“With this bill, we have clarified how schools transition to remote learning when significant illness threatens a school’s ability to safely continue in-person learning,” the Republican governor said.
It’s the first time Cox has spoken to the media about the measure. Despite several requests to his office, he has declined to take questions on it.
In his statement, he added: “The virus has been evolving and our response needs to too.”
HB183 is among the first bills — and the most significant — that he has signed so far this session. The other eight he approved Wednesday are all related to the budget.
With his signoff, HB183 takes effect immediately. Going forward, schools will need to adopt the new and lengthy process it lays out for shifting online during a surge.
Under the new procedure, a school that reaches the state’s threshold for an outbreak will first have to appeal to the district’s local school board, asking that students be allowed to learn remotely.
The school board will then need to hold a public meeting to vote on whether to take that action. If the members vote in favor, they’ll next have to ask for permission from the state.
Approval to go online will require signoff from all four of the top-ranking leaders in Utah: the governor, the speaker of the House, the president of the Senate and the state superintendent. It’s unclear how quickly those leaders can or will respond to a request, but their decision will have to be unanimous.
Only then, if they’ve gotten the OK, will schools be able to tell families that they’re moving to online learning.
Questions of constitutionality
Some school districts have spoken out against that setup for being too complex and time-consuming to be effective.
In just January, there were more than 40,000 cases of COVID-19 among school-aged children here — about the same amount as the prior five months combined, since students returned in August. And more than two dozen schools hits the outbreak threshold in the first two weeks back from winter break.
“This is very cumbersome,” said Ben Horsley, the spokesperson for Granite School District, in a previous comment. “I think it doesn’t take into consideration the dynamic nature of these situations.”
This academic year, schools in the state were instructed by the Legislature not to go online, with a requirement that at least four days a week be held in-person unless the four state leaders gave express permission in an exigent circumstance. That permission had not been sought by any school district.
Schools had instead been using the state-approved Test to Stay program, where once a school hit the outbreak threshold — meaning more than 2% of the student population was infected in large schools or 30 students were infected in smaller schools — they would test all students with parent permission.
Those who tested negative could return to class. Those who tested positive or refused to test were required to stay home for five days.
School leaders heralded that program. But Test to Stay was suspended by state officials last month as Utah’s limited test supplies were being used up with so many schools hitting the outbreak threshold. They said it wasn’t working with the faster-spreading omicron variant.
HB183 formally pauses that program and sets up in its place the new process for schools to go online during an outbreak. Test to Stay can also now only be reinstated again if all four of the state leaders sign off on it.
But it’s that delineation of control that’s causing concern for some who say it violates Utah’s separation of powers doctrine. That provision in the state Constitution, it states: “The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these shall exercise any functions appertaining to either of the others.”
With that, the legislative branch is supposed to create laws. The governor, or executive, is supposed to enforce them. And the judiciary is supposed to interpret them.
Under the bill, though, legislative leaders are given executive rights to enforce laws that they created.
Utah attorneys Brent D. Wride and Paul C. Burke wrote a recent commentary saying that power should be reserved only for the governor.
“Neither the House speaker nor Senate president may be given statutory authority to decide when circumstances warrant the closure of public schools on a daily basis during a pandemic,” they note. “This gives too much power to one branch of government.”
Senate and House Democrats agreed.
The state’s legal analysis
But Republican lawmakers pushed back.
And an analysis from their attorneys at the Office of Legislative Research and General Counsel on whether the bill had any constitutional issues determined it wasn’t a problem.
That analysis, obtained by The Tribune, said the Utah Supreme Court has previously recognized that the separation is not absolute and power is sometimes shared. The attorney argued that the House speaker and Senate president already have some executive authority.
An issue would only arise, the analysis added, if legislative leaders delegated that authority out elsewhere, even to a subset of the Legislature, such as a committee.
Sen. Todd Weiler, R-Woods Cross, and Rep. Jordan Teuscher, R-South Jordan, the sponsors of HB183, added in their own commentary that having the four leaders weigh in is a balanced approach and was already in code from last session (though never used).
They wrote: “Rather than a question of executive or legislative function, the four state leaders bring a broad, statewide perspective to the evaluation of the circumstances that trigger the remote exception.”
They added that the Legislature is granted the authority, under state code, to establish and maintain the public education system, along with the Utah Board of Education, which is overseen by the superintendent.
That’s why, Weiler and Teuscher argue, they came together with Superintendent Sydnee Dickson to draft the measure.
Both have also said they don’t agree the process is too onerous for schools to follow and promised state leaders would respond quickly to requests to go online.
Weiler said during one debate: “I don’t think we could be any nimbler than this bill.”
The two said, as well, that they believe in-person education should be prioritized, like the governor.
— Tribune correspondent Bryan Schott contributed to this report.