Can the Board of Education be partisan? Utah Supreme Court justices call state’s argument ‘thin' and ‘almost nonsensical’, but acknowledge ambiguity in the law

(Francisco Kjolseth | Tribune file photo) Supreme Court justices Thomas R. Lee, Constandinos Himonas, John A. Pearce and Paige Petersen, from left, listen to Chief Justice Matthew B. Durrant give the state of the judiciary speech to the legislature in the House chamber on the first day of the 2018 legislative session at the Utah Capitol on Monday, Jan. 22, 2018.

A lawyer for the state of Utah argued Friday that the Utah Board of Education is above and apart from the state’s education system, and not subject to constitutional protections against religious and partisan job requirements.

Arguing before the Utah Supreme Court, Utah Solicitor General Tyler Green said neither school board members nor their executive and office staff are education employees. And no candidate is blocked from running for school board office as a result of their party affiliation, or lack of affiliation.

“It’s not a condition that discriminates against someone,” Green said. “A test is something that discriminates or prohibits, precludes you from moving forward.”

The Supreme Court did not rule on Friday and its opinion could be weeks or months away.

In 2016, Utah lawmakers adopted a partisan election system for the state school board, beginning in 2018. Implementation of that law is on hold, however, pending resolution of Richards v Cox, a lawsuit filed against the state by current and former school board members and the Utah Parent Teachers Association.

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

Utah Constitution Article X, Section 8

The Utah Constitution prohibits the use of religious or partisan requirements for employment, admission or attendance in the state’s education systems. Critics of partisan school board elections say the language requires a nonpartisan selection of board members.

“The partisan vetting that occurs in the electoral process, surely, has to be the epitome of a partisan test,” said Alan Smith, an attorney for the plaintiffs.

Green’s argument for the state was occasionally met with skepticism — and in some cases criticism — by the Utah Supreme Court. Justice Paige Petersen repeatedly asked Green to clearly state the core of his arguments before describing them as “thin” and “narrow.” And Justice Constandinos Himonas bristled at Green’s selective use of state statute, suggesting the state was intentionally disregarding key words and phrases to make its point.

“You’re asking us to say that the [education] system does not include the Board of Education," Himonas said. “I think you have a better argument than this."

At one point, Petersen asked who the Utah Board of Education and the board’s executive and office staff were employees of, if not the education system. Green responded that the office of the board is employed by the state of Utah to externally oversee education.

“I think that shows your reading is way too broad then,” Petersen said. “That becomes almost nonsensical.”

But the plaintiffs' argument was also met with unfavorable questioning. Utah Court of Appeals Judge Diana Hagen — sitting in for Justice John Pearce — asked where the definition of “employee” ends if it extends to include elected members of the state school board.

“Why wouldn’t legislatures be included?” Hagan said. “Where’s the distinction that we can draw to accept your definition and not have it be over-broad?”

Smith said the distinction was not hard to make. Lawmakers have a role in maintaining a public education system, he said, but not in creating and implementing policies related to curriculum, teaching standards and the micromanagement of schools.

He also argued that the plain language and context of the constitution’s clause should be considered, in that voters in 1986 adopted the restriction on partisan and religious tests at a time when the school board was nonpartisan and expected to remain nonpartisan.

Near the closing of oral arguments, Himonas noted that a component of the state’s argument is that the Legislature has discretion to enact policy in areas of constitutional and statutory ambiguity.

“If there’s an ambiguity,” he said, clarifying Green’s point, “if it’s not crystal clear, then we are obligated to maintain the statute.”

In recent years, Utah has struggled to implement and defend an election method for the state school board. The state’s previous method — which included the selection of candidates for the ballot by the governor and a nominating committee — was declared unconstitutional in 2014, leading to a legislative stalemate over whether to allow direct elections in a nonpartisan or partisan format.

In 2016, with the deadline of an election cycle approaching, lawmakers reached a last-minute compromise that allowed nonpartisan elections in 2016 with partisan elections beginning in 2018. But that law was quickly challenged in court, with 3rd District Court Judge Andrew Stone ruling in December that the law violates the state’s constitution.

“There is perhaps no more partisan a test than a contested, partisan election,” Stone wrote in his ruling.

The Supreme Court’s ruling is not expected to affect the current election cycle, but would apply to school board races in 2020 and beyond.

“At this point the ballot has been certified,” said Justin Lee, Utah’s elections director. “Everything is nonpartisan. We don’t anticipate changing it.”