Bob Bernick’s notebook: Partisan school board decision is delusional

Bernick Mug 01

For me, another disappointing Utah Supreme Court decision, which came this week.

This one upholding the GOP-Legislature’s law that makes elections for the State Board of Education partisan — meaning in 2020 board members will run as Republicans, Democrats, independents or as a minor party member.

The high court, with once again Justice John Pearce excusing himself (he does this too often in cases involving government executives), said that the Utah Constitution’s prohibition of having a partisan test for public education doesn’t apply because the 15-member board are not employees of the state education system.


On its face, this is the most delusionary decision by the justices in some time.

It is the same as saying the Legislature is not employed by the legislative branch of government, or the governor is not an employee of the executive branch.

The main argument used by the justices is an extensive (but according to Justice Thomas Lee not extensive enough) examination of what is an “employee” and what is “employment” — as defined in any number of dictionaries and “common use.”

Do you remember former President Bill Clinton’s bizarre legal argument that it depends on what the meaning of “is” is?

Much the same here.

Anyone can see that the Utah State Board of Education is employed by the state’s education system.

They OVERSEE the education system, for lord’s sake!

But, no.

They are not employees of the state education system, says the high court (which overruled the reasonable finding of a state court judge saying they are employees).

And outside of the definition of employee, the justices cited the fact that the state board paychecks are signed by officials in the Administrative Services branch of the executive government — not by anyone in the education branch.

So, once again the high court justices, appointed by Republican governors and confirmed by the GOP-controlled Utah Senate, screw over every-day voters, who now will certainly see a state board run by partisanly-elected Republicans.

And it likely won’t end there.

With the justices ruling in hand, watch for the Republicans in the Legislature and a Republican governor to require that all 41 local school district school boards be elected in a partisan manner, as well.

To me, the Utah Constitution’s express wording clearly says the state schools can’t be run by party partisans.

That was certainly the goal by drafters in 1986, until in this ruling the justices walk backward, hold one hand above their head, twirl around several times and say black is not black, white is not white, and the partisan Legislature is, once again, perfectly legal in writing laws that skirt the Constitution, or outright run it over.

Yes, I read the whole opinion issued Wednesday.

And I remain amazed at how the English language was twisted in the opinion.

Here is Article X Section 8:

“Article X, Section 8 [No religious or partisan tests in schools.] 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 is the worst decision since the note entry of a year ago (we STILL don’t have a written opinion — my how the justices must be overworked), that upheld the GOP, citizen-initiative-hating Legislature law that allows a small percent of petition signees can remove their names after a petition has gotten the 115,000 voter signatures to stop an issue getting on the ballot.

I can’t criticize the wording of that opinion, since we haven’t even seen it yet. (or so I’m told by one of the litigants, and I couldn’t find it on the court’s decision publication page).

I await with baited breath.

You may recall that the high court ruled unconstitutional the previous system of having select committees recommend state board candidates to the governor, who decide which two to place on the ballot for voters to decide in each district.

That system was put in place years ago after some really weird state board members were elected, whom legislators didn’t like and thought bad for public education governance. So the lawmakers sought some kind of professional screening of candidates was needed.

Now we’ll have partisan school board members, who most likely will be mostly Republicans.

And, my, how much better that will be — since partisanship is so important to overseeing the state’s educational system.

And the Utah Supreme Court, the constitutional backstop for the citizens, faced with clear language in the Constitution having no partisan test in public schools, helps us not at all.

Well, can’t voters replace Utah Supreme Court justices?

They stand for retention election every 10 years. And none have been removed by voters in state history, replacements coming through retirements or death.

By the way, there are bylaws in the Utah Republican Party that say Republicans elected to public office must uphold the party platform.

Gun control. Abortion. How will those topics worm their way into State Board of Education decision-making?