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SALT LAKE CITY — The law that outlines how Utah schools can move to remote learning raises new questions about whether state lawmakers violated the state constitution in the process.
Utah’s Republican-led legislature first decided how schools can go remote last year with S.B.107, then tweaked the process this session when they nixed “test to stay” with H.B. 183.
H.B. 183 tweaked the process for school districts and suspended Test-to-Stay. But it didn’t change the part that says the governor, state superintendent, speaker of the House, and Senate president together must give final approval before a district can go online.
“So effectively that means the speaker of the House has a veto on that decision, the Senate president has a veto on that decision, as do the governor and state superintendent,” said Adam Brown, Associate Professor of Political Science at BYU, who studies state constitutional politics.
“The thing that seems strange constitutionally is giving the speaker of the House and the Senate president a unilateral decision-making role when there’s nothing in the state constitution suggesting they have been given that.”
According to Brown, the speaker and president can act for their respective chambers. However, they cannot make binding decisions affecting a school district.
This law may also violate the state’s Separation of Powers Doctrine, which says:
The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.
A local Salt Lake City-based appellate judge argues the legislature is in violation because lawmakers passed this bill putting themselves in charge of something they do not have the authority to be in charge of – the execution of when schools go remote.
That, argues Brent Wride, is a function of the executive branch in the form of the state school board.
“The legislature, in my view, is seeking to inject itself into the day-to-day oversight of the schools. That is inherently an executive function.” Wride said.
Sen. Todd Weiler, R-Woods Cross, a lawmaker and an attorney who sponsored that bill, disagrees.
“It’s not an executive function,” he said. “The legislature set the policy and this committee is giving us some nimbleness to turn the policy off.”
Weiler argues the power actually belongs to the legislature because they say what happens with Utah’s schools.
“I think we are on very solid constitutional grounds,” Weiler said.
Furthermore, he says this bill makes these four top leaders, a commission. And says Utah’s Supreme Court allows lawmakers to be on commissions without violating the separation of powers.
“We have a long history of appointing legislators to committees and those committees making decisions,” he said. “And that’s what’s happening here.”
One main difference: commissions are ruled by the majority. Therefore, they don’t typically grant what amounts to veto power to a single individual.
Brown says it might take a while, if we ever, see the judicial branch weighs in on all of this.
“We tend to assume the courts will adjudicate questions of constitutionality,” he said. “Therefore, the legislative and executive branches should do whatever they want until the courts stop them. And that’s a very impoverished view of constitutionality.”
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