Last week was a monumental for the issue of the State School Board selection process. First, Judge Clark Waddoups of the Federal District Court ruled on September 6 that the existing system was unconstitutional! On Thursday, September 11, he said the remedy was to include two of the lawsuit plaintiffs on the ballot.
As a follow up, I have three questions:
- What is my response to the Waddoups ruling?
- What impact will the remedy have on this year’s election?
- How will the process change in the future?
The Waddoups ruling is a major victory for representative government!!!
Most readers of this email will not be surprised that I strongly oppose the current system to select the State School Board. In fact, 90% of those who receive this email first joined when I compiled a list of people who opposed the present system and desired direct, nonpartisan elections instead.
The current system (enacted by the Legislature in 2002) is, in my opinion, an embarrassment. The legislation created one statewide committee which had the power to narrow all potential candidates down to about three per district and forward them to the Governor who narrowed the candidates to two. Finally, the public got to vote. (As the system developed, majority power frequently went to a coalition of business and a charter school representatives.) The law went into effect for the 2004 election; that very year, one incumbent (Michael Anderson) was eliminated by the committee selection process.
In 2008, two incumbents were eliminated: Teresa Theurer and Richard Sadler. Richard Sadler was chair of the Utah State Board of Education and Dean of the College of Social Studies at Weber State University. Teresa Theurer currently serves on the Utah Board of Regents.
In 2010, lawyer Denis Morrill, incumbent, was eliminated in favor of a candidate who was a school custodian.
In 2012, two incumbents (Janet Cannon, former vice chair of the Board) and Carol Murphy (former president of Utah School Boards Association) were eliminated.
Historically, this committee has eliminated other highly qualified individuals: Mossi White (President of the National School Boards Association), LeGrande Richards, (Dean of the College of Education at BYU), and Carmen Snow (former State PTA president).
Careful examination shows the power of the committee has been exercised to skew the makeup of the State Board of Education, frequently rejecting those with strong education credentials and who support better funding for public schools.
Fortunately, now, Judge Clark Waddoups ruled (as many of us long believed) the process is unconstitutional! His ruling said that the process violated free speech provisions. (*Lawyer David Irvine explains the Judge’s analysis in the footnote.)
Besides expressing appreciation to the court, my personal thanks goes to lawyers Alan Smith and David Irvine who have labored tenaciously to bring the change to fruition, and to Breck England, Pat Rusk, and Carmen Snow, plaintiffs.
The court remedy alters the 2014 election.
The remedy that Judge Waddoups crafted is, I believe, the best that could be done. It does not address countless wrongs in the past and this year. It only speaks to the complaint filed by three individuals in this election cycle. With the short time frame before the election, it would be difficult to accomplish more. I suppose more may develop—who knows?
That means that in two districts (#5 and # 6), there will be three candidates on the ballot. In those districts, the election may take new turns. With three candidates, the eventual winner may well be a plurality winner, failing to obtain a majority vote.
All hands on deck: Non-partisan elections must be maintained in the new process!
Now the court has ruled, the Legislature must and likely will address the issue in the coming legislative session. I am aware of three alternatives being discussed:
1.) A Board appointed by the Governor similar to Board of Regents.
2.) A Board selected by a direct, partisan election.
3.) A Board selected by direct, nonpartisan election.
Argument in favor of each system will be presented and discussed in the coming months. My personal thoughts:
- I believe alternative one ignores the basic premise: the public should choose by direct vote. This system places the power with the Governor and although limits could be placed by legislation on his power to choose, to me this approach violates the principle enshrined in our State constitution of keeping public education out of the politics. Adoption of this procedure would require constitutional amendment.
- For a similar reason, I find alternative # 2 very troubling. The State Constitution specifically prohibits it. Article X, Section 8 of the Utah Constitution: “No religious or partisan test or qualification shall be required as a condition of employment, admission, or attendance in the state’s education systems.”
- To me, alternative #3 would serve us best. The people would vote in direct elections. The elections would be nonpartisan like our municipal elections.
Again, I congratulate those who have fought vigorously to change the current disturbing system. But the job is not over. Vigilance will be demanded. The Legislature will be creating a more permanent remedy. I urge all readers to speak up—loudly and repeatedly—complete the job the court began! Let the people choose in the State School Board in nonpartisan election.
Kim R. Burningham
* An explanation of Judge Waddoups ruling, explained by David Irvine: Where the government acts as a gatekeeper to the ballot, and claims a compelling interest in doing so, there have to be neutral, objective standards in place, applicable to all candidates, which allows for judicial review in order to determine whether the standards are followed. The present system provides NO standards, which means that the gatekeepers (the nominating committee AND the governor can engage in exactly the kind of speech discrimination [and political involvement discrimination] the First Amendment prohibits. Judge Waddoups found that this is exactly what has been the pattern. No one can explain why one candidate gets selected over another, especially where they appear to be equally well-qualified — AND why some obviously unqualified people have been selected to replace incumbents who had been elected by the voters. Applicants’ free speech rights cannot be subjected to self-censorship because they are fearful that their beliefs and speech will offend the gatekeepers and deny them ballot placement. The school board is an ELECTED position, not an appointive position. The voters, thus, should be the gatekeepers — and, of course, voters can use whatever standard they choose for voting for or against any candidate.
(Note: In this email, Burningham speaks in his own behalf. The point of view expressed in this blog does not necessarily represent any organization of which he is a part.)