Todd Weiler and Jordan Teuscher: It is the Utah Legislature’s job to oversee public schools

It is no violation of the Separation of Powers for lawmakers to rule on local remote learning decisions.

(Francisco Kjolseth | The Salt Lake Tribune) The Highway Patrol posts the colors for the start of the 2022 legislative session in the Senate chamber at the Utah Capitol in Salt Lake City on Tuesday, Jan. 18, 2022.

“If there is anything you absolutely hate, it must be unconstitutional.“

— Justice Antonin Scalia

Attorneys Brent D. Wride and Paul C. Burke have called for Gov. Spencer Cox to veto H.B. 183, In-person Learning Amendments, a necessary bill because state resources could not keep up with the test-to-stay demands under omicron. H.B. 183 also creates a much-needed state standard for remote learning.

Wride and Burke argue that the bill is unconstitutional due to legislative leadership’s involvement in determining whether a school district qualifies for a remote learning exception. They believe this violates the separation of powers doctrine by assigning executive powers to legislative officers. It doesn’t.

The separation of powers is one of the most fundamental principles. No one disputes that powers properly belonging to the executive branch cannot be exercised by the Legislature – but H.B. 183 does not trample any rights that exclusively belong to the executive branch.

Wride and Burke argue an amendment to a statute is unconstitutional seemingly without realizing that the same mechanism they find objectionable in the amendment is already part of the statute. The governor, senate president, speaker and state superintendent would still be the ones to identify when a statutory threshold is met to trigger an exception that allows a school to pivot to remote learning.

This is not about enforcing speed limits; it is the system of delivering education during a worldwide pandemic. Which branch decides if school is remote or in-person? It isn’t the executive branch. For good or bad, the Utah Constitution does not grant the governor a role in education.

Article III of the Utah Constitution requires the Legislature to establish and maintain the public education system. Simply put, the Legislature decides what the system will be, and any exceptions that might apply. Is it an executive function to decide the circumstances of any exception to a statute? Of course not. That would violate the separation of powers.

The Legislature already established a balancing test as the trigger for the exception to the in-person learning requirement, which the four state leaders and local boards must identify. Under H.B. 183, the Legislature has simply added more detail to the circumstances of that exception.

In the case of education, the Legislature establishes and maintains the educational system, while the state board exercises general control and supervision. It was precisely this constitutional partnership that brought legislative leadership and the state superintendent together to develop H.B. 183.

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. We need in-person learning. But sometimes, we might need remote learning. H.B. 183 provides more process to an existing, nimble, and responsive statutory exception.

Vetoing H.B. 183 would remove those processes and force schools to mistakenly treat omicron like 2020 COVID; it would not change the trigger for the remote exception that is already in the law. A veto would hurt teachers and students, because students would have to stay at home for 14 days, rather than the five days currently recommended by the CDC.

The Utah Supreme Court has recognized that “there are many cases in which the duties of one department are to a certain extent devolved upon and shared by the other” (Tite v. State Tax Commission).

As state leaders, legislators sit on a variety of commissions such as the Utah Judicial Conduct Commission. The Utah Supreme Court has held that an inter-departmental appointment does not violate the separation of power doctrine. Applying the court’s three-prong test from that case shows that the participation of the speaker and the senate president does not violate the separation of powers.

H.B. 183 takes into consideration a school’s COVID case counts before going remote. It requires a local school board to discuss and vote on a proposal to go remote in a public meeting. It makes schools identify measures to get back to in-person learning safely.

The Utah Code already designates the same four individuals to identify when an exception is triggered. It provides that the in-person learning requirement doesn’t apply if those four “jointly concur with [a school district’s] assessment that due to public health emergency circumstances, the risks related to in-person instruction temporarily outweigh the value of in-person instruction.” H.B. 183 does not fundamentally change the existing law.

It is rarely helpful to frame disagreements over policy as constitutional pronouncements. According to Rex Lee, “The Constitution has been too often misused for personal gain. Individual desires have been palmed off as scholarship.” Bob Bennett concluded: “We should all revere, honor, and study the Constitution, but we should ... be a little careful about how firmly we tell everybody else what it really means.”

Todd Weiler

Utah state Sen. Todd Weiler R-Woods Cross, represents District 23.

(Leah Hogsten | The Salt Lake Tribune) Rep. Jordan Teuscher, R-West Jordan, during the 2021 Legistature.

Utah state Rep. Jordan Teuscher, R-South Jordan, represents District 42.