The Missing 4th Branch

We've all heard the popular childhood bedtime stories: the 3 Little Pigs,  Goldilocks and the 3 Bears, and James Madison and the 3 Branches of Government.  Well boys and girls, get ready for a nightmare scarier than that big bad wolf.

Buried deep within the legal and procedural manure of the voucher referendum debate, members of the State Board of Education claim to have discovered the missing 4th branch of government.  (Yes, it's like a Hollywood trilogy machine gone awry or perhaps a disturbing  Fox TV reality show "When Bad Government Attacks")  Not content to have an Executive, a Legislative, and a Judicial branch, they are claiming that we  have glossed over the Education branch -- a branch holier than all others and accountable to none.

Now, forgive my skepticism, but if Madison really conceived of the Education branch, it must have been discarded in an early draft of the Constitution, before he had worked out the whole concept of checks and balances.

As we have watched this discovery play out, we have learned that the Education branch is above the law.  This missing branch chafes under the fiduciary oversight and governance of the Legislature, signaling its contempt for the Legislative branch.  It ignores the legal council of the constitutionally designated attorney for the Executive branch, expressing its disregard and hostility  Not appearing to be satisfied there, the Education branch appears to be asserting itself, preparing to take it's desired place, separate and apart from all others branches.  Under the guise that "education is just too important" for that messy separation of powers, the State Board of Ed is positioning to become a power unto itself -- the sovereign monarch of public education policy.

If the public thought the voucher referendum brouhaha was messy, imagine their response when this constitutional crisis erupts, invalidating their whole belief in the 3 branches of government (and possibly the 3 Laws, as well).  Perhaps, like in Asimov's "I, Robot," the 3 branches ultimately lead to one thing: rebellion.

Comments

[Andrea]

Don't be surprised when Burningham and the school board refuse to implement vouchers when the voters approve them.

[Tim]

I know this will come as a complete surprise but sometimes, the actions of the legislature (and thus, the law) are not very clear. Prior to Friday, no one actually knew WHAT the law was for vouchers. Now we do. Up or down based on the November vote.

I think you make too much of the confusion here. It does not constitute a power grab when the board throws up their hands and ask for clarification. They had many people telling them many things. Had they implemented the rule, they would have had to have an emergency meeting to recind it. Likewise, had the decision gone the other way, they would have needed an emergency meeting to implement the rule. Either way, and this is my point, WE ALL WOULD BE OK.

They sky is not falling. The legislature still has ALL the money. This process is no more messy than others you have been through.

I hope that at the end of the day, people of good will can still make constructive changes by working together.

[Jeremy]

Wow...that unanimous Supreme Court voucher decision must have really gotten under your skin. This post is definitely not the optimistic triumphalism I've gotten used to from this site.

Your bitterness only shows how silly Utah's legislative Republicans can sometimes be. Perhaps you are all just too used to winning all the time.

Vouchers were never the law under HB 174 "Education Voucher Amendments". Shurtleff was 100% incorrect and the BoE was absolutely right to delay implementation of the voucher program. They were totally vindicated by the unanimous Utah Supreme Court on Friday. Republicans who intended to disenfranchise Utah's voters on this issue were hoping for judicial activism from the Supreme Court in a manner completely counter to their usual judicial rhetoric. On this issue your side not only went against its usual principles but you all looked really pathetic in doing it.

As a usual fan of your site and Utah's fiscally conservative economic politicians in general here's hoping the sour grapes can be put aside and the discussion that actually matters can begin.

[John Dougall]

Perhaps you are unaware, but there are individuals that claim that education is a 4th branch of government. Also, if the State Board of Ed was concerned with HB174 it should have taken it to the courts directly and immediately. Instead it refused, even after receiving the opinion of the AG. From my perspective, as an Executive branch agency they are obligated to abide with the AG's opinion until they are told otherwise by either the Legislature or the Judicial branch.

This is a bigger issue that the voucher referendum debate.

[Rob Miller]

John,

The Board was right, and you are whining.

"Let the Courts decide, unless they agree with the Board of Education!"

[Craig Johnson]

Hi John,

Wow I'm surprised by this post. If memory serves me correctly, the 4th branch comment came from Tom Gregory, a solid voucher supporter in your neck of the woods. His comment I thought was interesting but there were puzzled looks even from other state board members when he made the comment.

I have love and respect for the state board, even the voucher supporters! They're a good bunch.

And I think you, too, are better than your post might suggest.

Craig.

[Michael T. Packard]

Bravo, John.

These folks carve out this new branch with EEZ. These are the Education Establishment Zealots.

Vouchers are their equivalent of the World Trade Center terrorist attacks. Extremism in defense of "their" chosen/stolen domain is no vice. Anything goes.

There is a lack of numeracy, especially including irrationality, among them.

Remember, the teacher's union voiced support for huge taxes for UTA for "public transit" expansion totally ignorant of the realities of transportaion, market share, and efficiency therein. In the 2004 Long Range Plan at wfrc, transit was to get $18.5 billion--(43% of total transportation expenditures)-- in hopes it would garner 1.8% market share by 2030. Now the union and other EEZ folk don't want private schools to get even 1% of state education. funds.

I would love to see this before the U.S. Supreme Court.

Mike

[Tim]

Tom wouldn't say that! Why would Tom say something like that?

[Tom]

Thanks for the vote of confidence, Craig. The words "4th branch" haven't escaped my lips as a description of the Board--that particular phrase I credit to the person presenting when I responded as you describe. (Although I believe in a strong, independent Board, I think that particular phrase trivializes--and disparages--an important issue.)

As much as I thought Rep. Dougall was referring to me, when we spoke today he insisted repeatedly he was referring to a handful of very specific people, and my name was not among them. :^D

To those of you here tying this topic to the voucher debate: don't. It's a much older and deeper issue than that--vouchers were simply one vehicle to bring the discussion to the fore. I've had discussions with policy makers at various levels for more than a year now on this topic.

As alarmist as this post was, I know there was a good deal of hyperbole and overstatement involved. It was just Rep. Dougall's way of bringing the public into the discussion.

The question at the heart is what is the role and scope of authority of the State Board of Education? It is granted specific power by the state constitution, but how does it relate to the legislature? Is it part of the executive branch? What does that mean practically, when "the rubber hits the road"? How is the issue best resolved? The topic is on the agenda of the joint education committee meetings this week. The Board of Regents and the Board of Ed will be there as well.

I've promised Rep. Dougall that if I choose to post on the issue that I'll make sure he knows about it.

[John Dougall]

I appreciate Tom's post. The question of governance is a critical issue which has nothing to do with the voucher debate. Rather, the governance issue added to the controversy as the state entered unfamiliar territory regarding the referendum process and the interrelationship between HB148 and HB174. In the original constitution (1896) it was apparent that the Superintendent of Public Instruction was an executive branch officer. When the constitution was amending in 1986, this clarity was reduced. Also, as more funding is provided by the state legislature, what is the role of the state board of Ed when the Legislature now has significant fiduciary responsibility. The funding responsibilities began significantly shifting in the 1930's as the state income tax was implemented and then later in the 1940's (if I remember correctly) when it was dedicated exclusively to public education.

Tom and I recognize the important question of governance, responsibilities, separation of powers, etc. exist. With 100+ years of major changes significant unanswered questions need to be clarified and resolved. They have been floating under the surface for years. The current referendum process has exposed those divisions in a very public manner.

[Craig Johnson]

John/Tom,

I did not see hostility towards the Attorney General. I saw a board that listened to his advice and, on the whole, simply disagreed with it. It appears that they made the right call - and it took courage to do so.

This post felt more like an opening salvo, a bit threatening in tone, stirring up negative sentiment towards our great State Board (refer to Mike's comments as an example of such pointless hatred and vitriol).

It seems somewhat clear that this post did in fact relate vouchers to the larger disconnects between certain factions of the legislature and public education officials.

I think we perhaps could get everyone's attention to discuss these issues in a different way.

If there are individuals actually going on record that they believe in a 4th branch of government, let's get those specifics out there.

If you folks really want to have productive discussions about bridging some fairly deep philosophical divides, that's great. Let's have them. I'm a big believer in such collaborations.

Craig.

[Michael T. Packard]

CRAIG DID NOT GET EITHER OF THE TWO MAJOR POINTS OF MY POST>

There are extremist/zealots opposing vouchers. Indeed, there are zealots on both sides of this debate.

Innumeracy and irrational--emotional response is typical of a great many anti voucher folks.

Craig proved my point in calling my post pointless while ignoring and displaying the very irrationality I described. The data is compelling.

Vouchers involve a tiny percentage of public education money. Yet they evoke responses at though vouchers were stealing half the money. An irrational response.

The zealous-emotional response by the the Education Establishment has already hurt education in UTAH far far more than the slight diversion of dollars in voucher legislation.

In teaming up the PTA with the teacher's unions and the establishment to force vouchers into the courts, many thousands of families have gotten the absolute and irrevocable message that the PTA is not there for them, to partner in their children's education, or for their children in more direct support, but for the establishing of the supremacy of the Education Establishment. These families now know that the PTA is against them as parents seeking to exercise a little more control over their children's future.

[Dave Cox]

John,
Education was never meant to be an agency of the executive branch. I hope it never becomes so. It was originally more like a publicly owned corporation with all of the property taxpayers of the district as stockholders, complete with a board who hire a CEO.

In Utah there was set up a sort of county inspector of schools, who had little authority. Each school had its own board and did its own thing.

As more legislation has passed the power of the state superintendent has grown. Every requirement placed on the Supt. increases his/her power. This, combined with legislative and judicial edicts on both the state but more so on the federal level, has frustrated local boards of education as they are over-ruled and unable to act on behalf of their constituents.
I hope we NEVER socialize education by making it part of the executive branch. I don't want government schools (though we are virtually there now due to centralization and legal entanglements).

Don't make the board partisan. Don't make the State Superintendent an appointee of the Governor. DON"T have the government take over education, like Chavez is doing to other businesses in Venesuala.

Break the districts into community corporations. Indiana does call them corporations instead of districts. Then let them answer to their shareholders.

[Carin]

John:

I really appreciate your view of the voucher system debate. In the case of Public Education, one size does not fit all....no matter how hard you try to make it fit.

It reminds me of utilities back in the day. My Father explained it to me this way. We only can have one telephone, or electric company in our town, otherwise their would be multiple poles all around town and that just isn't pragmatic.

Well, we have seen that competition in the phone and even in the power sector has yielded more choice, better service, and cost savings to the end user. Why would we not think that similar results would be gained with the voucher system.

I would encourage the Dept of Education to comply with the law.... period. Our education system is one with many rules and regulations that require the end-user (students and families)to comply or negative outcomes are realized. The same should be required of this Department ( which is not a 4th Branch of the Government).

Finally, a play on something else my Father used to say... Just because someone changed the playing field does not provide a reason/excuse to take your ball and go home.

[Daniel]

I thought Dick Cheney was the fourth branch of government...ooops.