State Constitutionality and Adequacy: Signposts of Concern on Utah's Path Toward Developing Vouchers

I. INTRODUCTION The State of Utah was the focus of a national education debate in 2007 after the legislature passed a universal voucher program, House Bill 148,1 by the slim margin of one vote.2 The voucher would have allowed any public school student who left public schools after January 2007 to use public funds at virtually any private school. Although a public referendum later struck down the statute by a significant sixty-two to thirty-eight percent margin on November 6, 2007,3 voucher opponents fear that Utah legislators intend to introduce more voucher legislation in coming sessions,4 and national proponents of voucher plans remain committed to passing such legislation. The authors of this Article have witnessed and been involved in Utah's public debates regarding House Bill 148 and its predecessor bills and conclude that several key issues confronting a voucher plan in Utah have been inadequately considered in the current legislative and political climate. First, the bill and its proponents attempt to minimize the potential for indoctrination of inappropriate values and messages by requiring voucher recipients to comply with federal discrimination laws. Unfortunately, this requirement does not provide a significant filter for ensuring that private schools do not use public funds to inculcate students with inappropriate values, messages, and ideas. second, the bill's proponents have assumed that there are no significant Establishment Clause threats to House Bill 148's universal funding of any religious school. A review of key cases and constitutional provisions makes the authors less sanguine regarding federal and state Establishment Clause concerns. Third, voucher proponents have stated regularly that one of the main groups benefitted by the bill will be low-income and minority students who are currently locked into public schools that fail them. We argue that attention to educational adequacy in public schools has greater potential to serve the needs of such students. Part II of this Article posits that mere compliance with one federal civil rights statute alone may be insufficient to assuage concerns that the bill fails to provide a significant barrier to the direction of public monies toward schools that may inculcate messages inimical to the purposes of public education. Part III asserts that a Utah voucher proposal may not be proper under the Utah Constitution nor under Zelman's "failing school" rationale. Part IV submits that, even if a voucher proposal withstands constitutional and legal scrutiny, alternative programs embodying school finance equity considerations may provide a more helpful means to voucher programs' intended ends-at least those ends referenced regularly in debate that deal with serving low-income and minority students. Part V discusses school finance litigation trends and concludes that attention to educational and financial adequacy in public education will have a greater potential to serve the needs of low-income, minority, and language minority students than vouchers. II. FEDERAL ANTI-DISCRIMINATION LEGISLATION: AN INAPPROPRIATE STANDARD FOR PREVENTING INDOCTRINATION IN VOUCHER PROGRAMS Development of House Bill 148 has been an iterative process involving give and take between advocates, legislators, and others with reference to earlier bills. Opponents criticized the Utah bill's lack of significant controls over the types of schools that could receive public funds, raising the specter of schools whose message and curriculum might be far removed from the inculcative mission and values of public schools.5 The authors of the bill attempted to quiet such fears by including a provision requiring private schools seeking voucher funds to apply months in advance of the school year and by requiring compliance with federal anti-discrimination law.6 This should have given time for the applicants to be vetted as to their compliance with the protections in the proposed statute. …