Kim Burningham: Legal action needed to avoid partisan State School Board elections

Tragically, Utah will–if something isn’t changed—select the State School Board through an unconstitutionally partisan election starting in 2018.

by Kim Burningham
by Kim R. Burningham

Some may be surprised by this statement.  This year, the election is proceeding in an orderly non-partisan fashion to select members of the State School Board, but in a weird compromise fashioned by the State Legislature in the waning hours of the 2016 session, this is the last time the election will be non-partisan.

The Legislature could remedy the ill-advised move, but I believe this is highly improbable.   The most certain and appropriate action to make sure the State School Board remains non-partisan would be legal action.  In this statement, I will examine four issues:

  • The 2016 Legislative compromise to make the State School Board partisan
  • Why a partisan school board is bad policy
  • Why a partisan school board is unconstitutional
  • How do you remedy a non-constitutional action?

The Legislature makes the State School Board partisan

In previous years, the question of partisan or non-partisan school board elections had been vigorously debated.

Prior to this year, Utah had a system for State School Board selection that has been compared to the Russian Politburo.  (“Education board picks reflect politics,” Salt Lake Tribune, April 30, 2010)  An appointed committee narrowed candidates down to three and the Governor narrowed that to two, eventually voted upon by the public.  In 2014, a Federal Court ruled such a system violated the Constitution.  A replacement needed to be found.

The House of Representative had consistently voted for non-partisan elections.  Generally speaking, Senate members who favored partisan elections opposed legislation sent over from the House and a stalemate ensued.   On some occasions, the issue was vigorously debated right up until the end of the session.

In 2016, a kind of fatigue on the issue had settled in.  Little was said about the matter until the final hours of the Legislative session when a so-called “compromise” appeared.  That compromise which had the support of Republican leadership called for non-partisan elections in 2016, and partisan thereafter.  In a spirit of resignation, the “compromise” which is no compromise passed.   Senate sponsor of the bill, Sen. Ann Millner acknowledged, “We really don’t have time to do anything else.”   (“Barring action by guv or a 2017 change, Utah school board elections will be partisan after 2016,” Salt Lake Tribune, March 22, 2016)

After this year, unless there is a change in the law state school board elections will be partisan.

Partisan school boards are unwise

For nearly 30 years I taught in the public schools.  Although in my personal life I was heavily involved in partisan politics, while in the classroom, I understood it my duty to be non-partisan.

Recently, a former student described her memory of decades ago.  She remembered how one day I stood before the class and energetically outlined my reasons for one policy direction regarding the debate topic about multilateral interventions.   At the conclusion of the class period, she said she was totally convinced of the validity of that position.   The next day in class, apparently I spent the day defending the exact opposite position.  By the end of that period, her position had altered.  She saw both sides of the issue.

What that student described is one of the most important principles which I tried to teach in years of debate classes.  Most issues have two, perhaps many, sides.

If teachers or leaders of our education system become advocates of one side only, the student’s education is severely limited. When the classroom becomes partisan, the result is indoctrination, not education!

If a board is politicized, then decision-making will be based on what’s good for the party in power, not on what’s good for Utah’s students.  Decision-making also could become polarized, and we’ll have the kind f gridlock or gamesmanship we see today in congress.  Or we may experience constant changes in educational policy—as the political winds blow this way and that—leading to disruption and lack of continuity in matters of educational administration.

Isolated partisan positions must be carefully guarded against in our education system.   Students should be taught how to analyze positions, but advocacy of one position which is more likely when partisanship is introduced to the classroom should be avoided.  This truth is behind the constitutional provision prohibiting partisanship in our schools.

Partisan school boards are unconstitutional

The Utah State Constitution, Article X, Section 8 reads:  “No religious or partisan test or qualification shall be required as a condition of employment, admission, or attendance in the state’s education systems.”

This injunction seems clear.  Political parties should be removed from the actions and procedures of our public schools.  No teacher should be hired because they have a particularly political allegiance, and certainly no person who sits on the board which oversees our education system should represent a political party.

If a Board of Education is partisan and makes partisan policies respecting education administration, this requires all employees in the education system that must follow prescribed policies of the Board to become partisan in the classroom.

Through the years, selection of the State School Board and the State Superintendent has undergone review and amendment.  I tend to think that the history of Article X of the Constitution has been to take the board out of partisan politics.

To circumvent the statement of the Constitution, some strangely argue that board members are not employees. Dictionary.com defines an employee as “a person working for another person or a business firm for pay.”  Since board members are clearly working for the education system and receive compensation—relatively small though it may be—I believe a clear interpretation insists school board members are employees.  Hence, I argue a partisan election of school board members violates the Utah State Constitution.

A judicial challenge is needed to change the unconstitutional action

True, the 2017 Legislative session could re-visit their 2016 “compromise,” reversing the legislation and maintaining the State School Board election as non-partisan.  However, I am not sanguine about this likelihood.  Although the House of Representatives has generally supported a non-partisan approach, the Senate has been adamant.  I do not expect them to move from their obstinacy.

The only remaining alternative is for interested parties to support a legal challenge and take the matter to the Courts. I believe the Utah Constitution is clear and such a challenge would result in reversal—a reversal needed to avoid the injection of party politics in our education system!

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