State school board selection: The ‘partisan elections are unconstitutional’ argument

800px-University_at_Buffalo_voting_boothAfter federal Judge Clark Waddoups’s recent ruling that Utah’s current state board election system is unconstitutional, a new argument from advocates of nonpartisan state school board elections has begun to make the rounds: that partisan state school board elections are barred by the Utah Constitution. While this argument represents a novel reading of the state Constitution, and certainly provides something new for talking heads to discuss, it has not been accompanied by much fact or substantive reasoning to back it up.

The constitutional provision in question (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 education systems.” In prosecuting their argument, the nonpartisan election advocates have simply quoted or cited this provision and moved on without further explanation, evidently assuming this citation closes all possibility of debate to any reasonable person. I mean, what part of “no partisan test” don’t you understand, right?

But for the common good and for the sake of free society, deeper thought and more substantive consideration than that is required for determining such an important policy and constitutional issue.

The plain language of Article X, Section 8 makes clear that it only applies to three areas of public education: employment, admission, or attendance. Obviously, state school board members are not seeking to be admitted to or attend public schools, so the only constitutional leg left for this argument to stand on is the area of employment.

So the relevant question becomes: Are we electing school employees when we vote for our state school board representative?

The common sense answer is “no.” Voters don’t go to the ballot box to choose their favorite education bureaucrat. Rather, they are voting for a person who is willing to take time and effort away from work and family to help administer the public school system — not as a source of employment, but as a public service to their community and state. Of course, we also recognize the financial difficulties that this service would create if it were left purely as a charitable donation of time, not to mention the implications for free society if only the wealthy were able to serve. Therefore, society has decided as a matter of policy to provide some basic financial reimbursement to school board members to help more people be able to serve. But the presence of modest financial reimbursement does not lead to the conclusion that state school board members are public school employees.

The existence of financial reimbursement for state school board members does not turn them into education employees, any more than similar reimbursements turn Utah legislators into state employees.

But we can rely on more than just common-sense reasoning in considering this constitutional argument. It turns out that the Utah Legislature has full-time legal staff whose responsibilities include evaluating whether proposed legislation, if it becomes law, is likely to be considered unconstitutional. If they believe it will be found unconstitutional, they attach a “legislative review note” to the bill.

Last year, legislation was introduced that sought to turn state school board elections into partisan elections. The bill made some progress through the legislative process, passing a House committee before being defeated on the floor of the House. As a piece of legislation that moved forward during the session and was publicly available more than two months before its ultimate defeat, it seems reasonable to believe that if legislative lawyers thought there was a good chance partisan state school board elections were unconstitutional, there would have been a legislative review note attached to this legislation. The fact, of course, was that this didn’t happen.

So from this angle, it comes down to a question of trust. Whom do you trust more to understand and objectively consider the issue of constitutionality regarding partisan school board elections: self-identified opponents of those elections, who do not to back up their argument with facts or legal reasoning, or legislative lawyers who do this kind of legal analysis every year? I’ll put my money on the latter.

All of that said, there is another path forward beyond having to choose either direct nonpartisan or partisan school board elections: compromise and do both. Sutherland has recommended a compromise solution to policymakers that would include some direct nonpartisan elected school board members combined with some partisan elected school board members, so that each potential candidate can choose their preferred path to serve on the school board. In an ideal scenario, neither the nonpartisan nor the partisan seats would have a majority – checking each other’s influence – so to this end it is worth considering including a few governor-appointed school board members as well. Beyond creating checks in the system, this addition of governor-appointed school board members is reasonable in itself based on two facts: the public school system is executive in nature, and the governor is likely to be held accountable for public education outcomes regardless of his or her influence on the system.

This kind of “hybrid” state school board election system would receive the benefit of both the nonpartisan and partisan perspectives – elected leaders representing the same constituencies, but different versions of it – creating an environment where healthy compromise is both encouraged and necessary for education policy to move forward. While perhaps a bit complex on the surface, it should be a familiar concept, since it is comparable to how representatives and senators represent the same voters, but those voters are grouped differently, leading to different perspectives on policy.

Rather than continuing to unproductively grasp for more arguments “proving” which imperfect election system is “the best,” Utah should look to the wise tradition of the Founding Fathers: find a compromise that magnifies the strengths, and limits the impact of the weaknesses, of the various proposals.