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School Choice is Constitutional in Utah

By William H. Mellor

             The Utah Legislature is poised to consider truly historic legislation that would make equal educational opportunity a reality statewide.  Giving families the right to choose the school that will work best for their child will put the power over educational decision-making where it belongs:  in the hands of parents, not bureaucrats.

             For just that reason, every time school choice is proposed, the education establishment fights to stop it, using every claim they can imagine, including the charge that school choice is unconstitutional.

             Those opponents could not be more wrong.  There is nothing in the Utah Constitution or the U.S. Constitution that poses a barrier to school choice.

             Nonetheless, opponents have worked tirelessly to cast a cloud of uncertainty over the legality of school choice in Utah, and in particular, the proposal currently before the Legislature.  Their warnings should not be heeded. (See full essay in the right column below.)


Zions Bank


News Highlights

Article: "A bill emerged Thursday on Utah's Capitol Hill that could bring a Real Salt Lake stadium to Sandy and salvage Utah's two-year-old soccer franchise ... If the measure passes -- it was crafted behind closed doors this week with the blessing of Gov. Jon Huntsman Jr., Salt Lake City Mayor Rocky Anderson and legislative leadership -- it would snatch at least $20 million for the project out of Salt Lake County coffers, which critics allege could result in a countywide property-tax hike" (Salt Lake Tribune) (see also related Deseret Morning News story).

Utah House to debate Rep. Steve Urquhart's school voucher bill today (Tribune, Morning News, and Davis County Clipper) (see also related Daily Herald story, Tribune op-ed, and Tribune op-ed).


Quote of the Day

“They deserve a thumbs up, not a thumb in the eye.”


-- Morning News editorial praising legislators for killing a bill that would have eliminated in-state tuition for children of illegal immigrants who qualify for college and have completed three years of high school in Utah.


Friday Buzz
Written by LaVarr Webb & Associates

Special Message to Greg Hughes:  “HIGH NOON!”

School Choice Research Results

Parents for Choice in Education has posted on its web site and distributed to legislators a PowerPoint presentation that examines Utah public opinion on school choice.

The presentation can be viewed on the PCE web site by clicking on the link in the New Survey Results box or by clicking here. The presentation provides results of surveys on school choice.

Meanwhile, columnist George F. Will writes that the tide is turning on school choice: “The public school lobby, which apparently has little confidence in its product, lives in fear of competition -- the fear that if parents' choices are expanded, there will be a flight from public schools” (Washington Post)

Show Me the Money

This week's Zions Bank Business Resource Center newsletter focuses on employee retention in a tight labor market and cites a Society of Human Resource Management job satisfaction survey that indicates compensation is now the top factor in determining job satisfaction, taking precedence over former priority elements like feeling included and appreciated.

Today in Political History

Feb. 2, 1960: The House, by a 393-0 roll call vote, adopts a resolution expressing Congress’ “profound sense of indignation and shock” at the recent outtbreak of acts aimed at desecrating places of worship in the U.S. and broad. (Source: National Journal 2007 Calendar of American Politics)

Washington Watch

Hatch Introduces Gang Legislation

A bipartisan coalition of senators, including Sen. Orrin Hatch, introduce legislation that "establishes new crimes and tougher federal penalties to deter and punish members of illegal street gangs and provides more than $1 billion in funding for gang enforcement, prevention and intervention programs over five years" (see press release); Hatch endorses federal minimum wage legislation passed by the Senate that includes "several important tax relief measures to help Utah's small businesses" (press release); Sens. Hatch and Ted Kennedy pen op-ed about reauthorizing the Children's Health Insurance Program (The Hill).

Bennett Backs Minimum Wage Law

Sen. Bob Bennett says of the Senate's passage of legislation increasing the federal minimum wage: "I agree with economic studies that show an increase in minimum wage would actually decrease job opportunities for those with minimal skills. However, I voted for the bipartisan compromise because it includes provisions that will minimize the burden on small businesses that employ millions of Americans, and will allow them to continue to grow and create jobs" (see press release).

Leavitt Highlights Health Initiative

Former Utah Gov., now HHS Sec. Mike Leavitt pens op-ed about the HealthierUS initiative, which seeks to "create a legacy of better health and well-being for our children" (The Hill),

 

Wise Words

“Every two years the American politics industry fills the airwaves with the most virulent, scurrilous, wall-to-wall character assassination of nearly every political practitioner in the country - and then declares itself puzzled that America has lost trust in its politicians.”

-- Charles Krauthammer (Source: Quote Garden)

Podcast Watch

Jennifer Napier-Pearce’s InsideUtah.com podcast this week features Utah House Rules Chair Steve Urquhart plugging school vouchers (:34) and creating a new level of political dialogue on the Internet (6:54); and Today’s Mama’s Stephanie Peterson and Rachael Herrscher (13:32) on motivating political mamas.

Blog Watch

The Senate Site reports: "The NAACP and other respected members of our community have asked that we change the start date of our legislative session so it doesn't coincide with Martin Luther King Day. A majority of the legislature believes it is probably past time to honor that request. Senate President John Valentine, Senate Minority Leader Mike Dmitrich, Speaker of the House Greg Curtis, and House Minority Leader Ralph Becker will sponsor a resolution that will make the change. ... Hopefully this will be a step in the right direction. The resolution will not only honor Dr. King for his role in the struggle for political recognition of the fact that all men are created equal, but also President George Washington and President Abraham Lincoln for their contribution to the same struggle" (for more Legislature-related posts, see Paul Rolly, Out of Context, Utah Taxpayer, Simple Utah Mormon Politics, UAC Blog, Lincoln's Legislative Blog, Davis Didjeridu, Jen's Green Journal, Dee's 'Dotes, and The World, According to Me).... SLCSpin notes: "Mayor [Peter] Corroon has apparently been returning phone calls to angry RSL fans who ring his office to voice their opinions of him. At least one fan on bigsoccer was surprised to get a call from the Mayor who listened to the guy's rant in person and then explained his decision to not back RSL with public money" (see also Part of the Plan).... At National Review’s The Corner, Mark Steyn says of Mitt Romney's shifted position on abortion: "A pro-life candidate who was previously pro-choice could be a great asset and a better sell than someone who's been pro-life all along. Many people don't think about the issue terribly much and, if they do, accept the Democrat-Supreme Court-media framing of the issue as one of 'personal choice'. And, if you come at it from that end, the pro-life-all-along crowd can seem the ones who are doctrinaire and absolutist. It's entirely reasonable to have been pro-choice and to come to realize ... that the abortion crowd just wouldn't stop -- that from a 'woman's right to choose' to partial-birth infanticide to state-funded embryo farming -- isn't a slippery slope but a dive off the cliff. To see the 'individual right' of abortion as something not in the broader society's interest is also a plausible and compelling shift, given the demographic death spiral in Russia and other parts of Europe. Governor Romney needs to do quite a bit of work on his pitch in this field, but you shouldn't be holding it against the guy that he's changed his mind. If he means it, then that's great news for us: we're meant to be persuading people, aren't we? And, if he's just being opportunist, then even that is modestly encouraging."

Casual Friday

Outdoors Report

Bald Eagle Day

Utah's annual Bald Eagle Day will be held tomorrow, Feb. 3, at sites in central, northeastern and southwestern Utah. On the following Saturday, Feb. 10, viewing will be offered at two sites in northern Utah.  Admission to Bald Eagle Day is free. Those who attend the Bald Eagle Day event at the Farmington Bay Waterfowl Management Area will get an added treat: they can watch as Utah's newest license plate featuring a bald eagle is unveiled at a ceremony that begins at 10 a.m.

The most comfortable time to view eagles is late morning and early afternoon, when the temperature is the warmest and the visibility is the best. The warmer temperatures are especially important if you are bringing young children.

Visitors can expect to see eagles during the late morning and early afternoon but not as many as just before sundown, when eagles fly to trees to roost for the night. At most of the sites, the best time to see the greatest number of eagles is probably from 2 to 4 p.m.

Participants are reminded to dress warmly and wear waterproof boots if there is snow on the ground.  Read more about Bald Eagle Day locations and events.

 

-- Tribune takes readers on moonlight hike at Jordanelle State Park

-- New gear unveiled at Outdoor Retailers Winter Market in the Morning News

-- Tribune cites the perks of night skiing at Utah resorts

-- Morning News on ski conditions in Utah and the nation

-- Discover a hidden in meadow in the Tribune’s Snowshoe Hike of the Week

-- Find out about upcoming events in the Morning News’ Outdoor Notes

-- Check out the Tribune’s Outdoor Notebook and Recreation Roundup for sports and recreation activities this week

-- For the latest wildlife news and information and the fishing report visit the DWR website

Weekend Events

New Films

-- Because I Said So:  Rotten Tomatoes

-- The Messengers:  Rotten Tomatoes

Concerts

-- Artemis String Quartet, Friday, 7:30 p.m., Browning Center, WSU, Ogden

-- BYU Deseret Piano Trio, Friday, 7:30 p.m., Harris Fine Arts Center, BYU, Provo, free

-- Origins Dance Company, through February 2, 7:30 p.m., SCERA Center for the Arts

--Workman Family, “Families Making Music,” Friday, 7:30 p.m., Assembly Hall, Temple Square, free

-- New American Philharmonic, Friday, 7:30 p.m., Roy High School, free; Saturday, 7:30 p.m., Browning Center, WSU, Ogden, $3.50/$4.50  

-- Utah Symphony performs the “Swan Lake Suite,” Friday and Saturday, 8 p.m., Abravanel Hall 

-- American Piano Duo, Del Parkinson and Jeffrey Shumway, Saturday, 7:30 p.m., Assembly Hall, Temple Square, free

Theater

-- “Sideways Stories from Wayside School” through February 3, Youth Theatre at the U

-- “See How They Run” through Feb. 10, Hale Centre Theatre

-- “See How They Run” through Feb. 10, Terrace Plaza Playhouse

-- “A Thousand Clowns” through February 10, The Grand Theatre

-- “Aida” through February 17, Rodgers Memorial Theatre

-- “The Man With The Pointed Toes” through Feb. 17, Hale Center Theater Orem

-- “Nunsense A-Men” through Feb. 24, Desert Star Dinner Theatre

-- “Sexsting” through February 25, Salt Lake Acting Company

-- “Butch Cassidy & the Sunburnt Kid” through March 24, Desert Star Cabaret Theatre

Museum Exhibits

-- Nathan Thomas Jones: Scattered Shadows and Collected Light Exhibition through March 11, Lesleigh: Paris — City of Light Exhibition through March 11, Kimball Art Center, Park City

-- The Quiet Landscapes of William B. Post Exhibition through May 28, Museum of Art, Brigham Young University

-- Modern Utah Exhibition through March 10, New Narrative: Warhol, Stella, Marden, Fitzpatrick through March 17, Ascension Exhibition through March 17, Salt Lake Art Center

Et Cetera

-- Park City Winterfest 2007 through February 11

-- 16th Annual Winter Deaflympics through February 12, various venues in Salt Lake and Park City

-- Snowshoe with a Naturalist, Cottonwood Canyons Foundation, Saturdays and Sundays through March 25, free, reservations required

 

Elected Officials Birthday List


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Editor: Paul Hollingshead
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Friday
February 2, 2007


Utah in the National News

Article: "Opponents of the Divine Strake non-nuclear explosion planned for the Nevada Test Site claimed Wednesday that the federal government is using an inappropriate model to determine the fallout from the experiment. During a status hearing Wednesday morning, Robert Hager, a Reno attorney representing the 'downwinders' in Nye County and Utah said the government's fallout prediction is off base. 'It's a military model that assesses visibility. It has nothing to do with health,' Hager said of the government's model" (Las Vegas Review-Journal).

Mitt Romney Watch
Article: "Former Missouri Sen. Jim Talent, who narrowly lost his re-election bid last November, was named a top adviser to Republican presidential candidate Mitt Romney. Talent will serve as domestic policy task force chairman for Romney's presidential exploratory committee, Romney announced Thursday. In his new post, Talent will oversee all domestic policy development for Romney's campaign" (Associated Press) (for more Romney coverage, see St. Louis Post-Dispatch, Associated Press, and Mobile Press-Register stories, and Larry J. Sabato and Ellen Goodman columns).


Local Headlines

Salt Lake Tribune

- Stadium plan: It's ba-a-ack!

- It's V-Day on the Hill

- Legislation: Deal on guns is drawn up

- Legislative leaders call for day of honor

- Archaeology trumps oil, gas

- Building limits: Just a tall tale

- Legislation: Eminent domain would be curbed

- Legislation Briefs

- Panel OKs $2.1 million settlement

- Stephenson calls for yoke on U.S. senators

- Legislation: Bill squeaks by preliminary Senate vote

- Anti-rail petition fails again

- Is bill political payback?

- SUU lands $3 million grant to help build life sciences building

- Rolly: Lobbyists flash cash at Capitol

- Legislator accepts position on the board of a charter school in Draper

- Sandy has new planning director

- Legislation: Today's important meetings

- Kane County draws up resolution opposing Divine Strake proposal

- Kane County attorney to quit

- Director of Eagle Mountain public works is moving on

- Slope closes subdivision road

- To form water entity, Cache contracts with ex-lawmaker

- Biotech program gets pushed on the Hill

- Riverdale delays decision on bingo club

- Bill would aid N. Salt Lake in court battle

- Panel approves bill on out-of-network doctors, hospitals

- Op-ed: The debate over school voucher legislation

- Op-ed: It's about putting choice back into parents' hands

- Editorial: Abortion again: Raising anti-abortion banner would be a mistake

Standard-Examiner

- Following the money trail

- Commercial growth pains

- Bill would allow beyond preferred lists of doctors

- Editorial: A drink with dinner ... or not

Davis County Clipper

- Eastman bill could trump SLC-NSL suit

- Education panel sends voucher bill to full House

- Tanning bill zips through Utah Senate

- Flurry of activity on Clearfield project due

- Kaysville hosts annual planning confab

- Kaysville council picks first-ever city planner

- Old rail becoming new trail

Daily Herald

- Voucher study: Growth, choice - while saving money

- Seat belt law steps forward

- Alpine weighs electric sign request

- UVSC gets half-million dollar donation

- Happening today in the Legislature

- Tax credits for fuel-efficient vehicles may hurt schools

- Bills would give Legislature a break for federal holidays

- Editorial: Animal abuse a felony?

Tooele Transcript Bulletin

- Growth, low unemployment don't equal higher wages

- Homeless census numbers give snapshot of problem

- Local pawnbrokers thrive - good times or bad

- Local car buff designs new Utah license plate

St. George Spectrum

- Editorial: No raises for Congress

KSL
- Public Advocating Ethics Reform in Legislature

- Editorial: A Smoking Ban to Protect Children

KCPW

- School Boards Oppose Partisan Plan

- Utah Abortion Ban "Might Succeed" at Overturning Roe v. Wade

- Compromise Gives Seat Belt Bill Second Wind

- Small Business Owners Want Cheaper Health Care

- Legislators Agree to Honor MLK Day - and President's Day, too

- Voucher Debate Rescheduled

KUER

- Power & Authority & The Utah Legislature

Logan Herald Journal

- Life as a capital page

- Local lawmaker's bill stalls in House

Deseret Morning News

- Capitol abuzz over Real S.L.

- Latest developments on soccer stadium

- Tax-cut plan slammed

- Tuition-voucher debate is today

- Utah Legislature may start day after King Day

- Salt Lakers top most-charitable list

- Ira Fulton spearheads UVU effort

- Funds presented to UVSC schools, divisions

- BYU-designed logo urges healthful living

- Reduced sentences criticized in ID thefts

- Syracuse debates alcohol issue

- Health lab, DMV top building priority list

- Health-care 'swing out' sparks debate

- Guard dependents may get tuition help

- Church slams gambling

- New ideas, solutions urged in U.S. drug war

- Nursing home settlement is approved by legislators

- Primary seat-belt measure inches along

- Labor committee supports relaxing teachers union contracts

- Tax credits for 'green' cars hit barrier

- Partisan elections for education boards move forward

- Senate panel OKs funding for school fee waivers

- Hunting-age bill awaits Huntsman's OK

- Snow picks panelists for selection of chief

- Sandy names staff planner as new city planning director

- Clear information on ballots sought in bill

- Rocky Mountain Care to receive settlement over Medicaid reimbursements

- House OKs $1.5M for road-corridor study

- Utah's business index skyrockets

- Reviews of farm bill mixed

- Senate OKs minimum-wage boost to $7.25

- Bob Bernick Jr.: Why won't legislators just ban most gifts?

- Editorial: Hurrah! Delta is staying put

- Editorial: Legislators vote for kindness


Advocacy Essay

 

logo

School Choice is Constitutional in Utah

By William H. Mellor

             The Utah Legislature is poised to consider truly historic legislation that would make equal educational opportunity a reality statewide.  Giving families the right to choose the school that will work best for their child will put the power over educational decision-making where it belongs:  in the hands of parents, not bureaucrats.

             For just that reason, every time school choice is proposed, the education establishment fights to stop it, using every claim they can imagine, including the charge that school choice is unconstitutional.

             Those opponents could not be more wrong.  There is nothing in the Utah Constitution or the U.S. Constitution that poses a barrier to school choice.

             Nonetheless, opponents have worked tirelessly to cast a cloud of uncertainty over the legality of school choice in Utah, and in particular, the proposal currently before the Legislature.  Their warnings should not be heeded.

             First, the U.S. Supreme Court in 2002 declared unequivocally that school choice is constitutional under the U.S. Constitution when it upheld a voucher program in Cleveland that continues to provide hope to thousands of children.  Opponents had claimed, as in Utah, that the program violated the First Amendment’s Establishment Clause because many families chose to use their scholarships at religious schools.

             Reinforcing earlier cases, the U.S. Supreme Court rejected that argument and held that “religiously-neutral” programs—that is, programs that provide aid to a broad group of people and that offer a wide array of options, without regard to religion—and that offer “true private choice”—meaning parents, not the government, choose the school—are constitutional.

            Utah’s proposal easily meets both criteria.  Opponents, such as the State Office of Education, claim that because Utah’s proposal is not exactly like the Cleveland program it is unconstitutional.  But they are alike in the ways that matter, and across the country school choice programs come in all sorts of policy variations—from Utah’s special needs scholarships, to tax credits in Arizona, to Milwaukee’s scholarships for low-income children—without becoming unconstitutional.

            Second, the current proposal also passes muster under the Utah Constitution.  The state Constitution has a clause known as a “Blaine Amendment,” a remnant of anti-Catholic and anti-immigrant bigotry that swept the country in the 19th century.  Blaine Amendments were intended to stop states from directly funding Catholic school systems—not from offering scholarships to families to use at the school, religious or not, of their choice.  That’s what courts in Wisconsin, Arizona and Illinois ruled when upholding school choice despite Blaine Amendments.    

             Moreover, in the leading Utah Supreme Court decision about its Blaine Amendment, a 1993 case dealing with public prayer, the court followed the lead of the U.S. Supreme Court and held that if public “money or property are provided on a nondiscriminatory basis” and they are “equally accessible to all,” the government program at issue complies with the Utah Constitution.  Again, Utah’s school choice proposal easily passes muster. 

            Third, opponents of school choice erroneously suggest that a 2001 Utah Supreme Court case laid the groundwork for striking down school choice.  But that case did not address school choice programs like the current proposal.  It dealt exclusively with charter schools and in fact reaffirmed the Legislature’s wide constitutional latitude in education matters. 

             Finally, Utah already operates several higher education student assistance programs allowing students to choose public, private or religious colleges, in addition to the Carson Smith program for K-12 special education students.  By school choice opponents’ reading of the Utah Constitution, those programs should be unconstitutional as well—but none has ever been challenged. 

            The right to choose something as vitally important as your child’s school should be an American birthright.  In Utah, that day is within reach.  Flawed constitutional arguments should not be allowed to thwart it.

William H. Mellor is president of the Institute for Justice, which successfully defended school choice in Cleveland before the U.S. Supreme Court, as well as programs in Milwaukee, Arizona and Illinois.


Political Calendar

Please submit calendar items to Daily@UtahPolicy.com

- Feb 2: Legislative meetings scheduled throughout day. See Legislative calendar for details.
- Feb 2: Gov. Huntsman to attend the U of U First Undergraduate Research Conference, 9 a.m., University of Utah, Olpin Union.
- Feb 2: Lt. Gov. Herbert to speak at the Grand Opening of Noah's Corporation, 10 a.m., 644 North 2000 West, Lindon.
- Feb 2: Midday Metro at 10 a.m. on NPR Utah, KCPW 88.3 FM, features a Capitol Hill update with KCPW’s Julie Rose; the latest from Operation Walk’s Michael Hoffman and Sue Duncan; at 10:30 on Science Utah: Mutant gene shatters nerves -- a new study out of the University of Utah that explains the ailment that may have afflicted Abe Lincoln; To participate, call 801-355-TALK or email midday@kcpw.org during the show.
- Feb 2: RadioWest on KUER FM 90: "Political Columnist Molly Ivins," 11 a.m. and 7 p.m. The political columnist Molly Ivins insisted didn't think George W Bush is stupid or mean, and she didn't hate him. But she did understand him. Ivins died this week in Austin after a 7 year battle with breast cancer. We talked with her back in 2004 about George W. Bush, but also her life and her role in the American conversation about politics.
- Feb 2: Hinckley Forum: "A Statistical Portrait of Utah’s Native Hawaiian/Pacific Islander Community," 12 p.m., Orson Spencer Hall, Room 255, University of Utah. Guest is Thomas N. Maloney, Department of Economics, University of Utah and Co-sponsor - The Institute for Public and International Affairs.
- Feb 2: Utah Humanities Council annual Human Ties Celebration, 4 p.m., State Room of the East Building, State Capitol. Weber State Professor and Humanities Scholar Kathryn L. MacKay will be honored by the UHC with the 2007 Distinguished Humanities Award. The program is free and open to the public. For more info call UHC at 801-359-9670 or visit
www.utahhumanities.org.

- Feb 3: Utah County GOP Lincoln Day Dinner, Utah Valley State College ballroom.
- Feb 3: Lt. Gov.Herbert to speak at the Emery County Lincoln Day Breakfast, 9 a.m., Critter Country Fixins, Castle Dale.
- Feb 3: Lt. Gov. Herbert to speak at the Utah County Lincoln Day Dinner, 7 p.m., UVSC Grand Ballroom, Sorensen Student Center, Orem.
- Feb 6: Hinckley Forum "Foreign Policy of Azerbaijan," 10:45 a.m., Orson Spencer Hall, Room 255, University of Utah. Guest is Elin Suleymanov, Consul General for the Republic of Azerbaijan in Los Angeles.
- Feb 7: Lt. Gov. Herbert to announce award winners and present certificates at the 2007 Manufacturer of the Year Awards Banquet, 4:30 p.m., East Capitol Complex, Salt Lake City.
- Feb 7: A Giant In Our City tribute dinner for Larry H. Miller, 6 p.m. reception followed by dinner at 7 p.m., Grand Ballroom, The Grand America Hotel, 555 South Main Street.  John Stockton will be the keynote, Thurl Bailey will provide entertainment, and Craig Bolerjack will act as Master of Ceremonies. The cost is $150 per person and $1,500 for a table of ten. Sponsorships available. RSVP by January 31 at www.saltlakechamber.org, giant@saltlakechamber.org or by calling 801-328-5050. Black tie is invited.
- Feb 7: Lt. Gov. Herbert to participate on a panel discussion about achieving peace within our communities, during the Westminster Peace Forum, 7 p.m., Westminster College, Salt Lake City.
- Feb 8: Lt. Gov. Herbert to speak at the Deseret Morning News-Utah Valley State College Journalism Conference, 8:45 a.m., Utah Valley State College, Orem.

- See the entire calendar