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A referendum wouldn't stop school vouchers in Utah, but it may weaken vouchers' chances of surviving a constitutional challenge, according to a legal opinion from Utah Attorney General Mark Shurtleff released Tuesday.
The opinion said a second law passed earlier this year amending the state's original voucher law could stand on its own, allowing the state to award public funds to help parents pay for private school tuition. So a referendum petition drive under way to repeal the first bill would merely nullify the sections of the bill that don't appear in the second version, HB174.
One section, however, includes language providing "mitigation monies" that keep public schools from losing money when students leave. Other sections limit state oversight of participating private schools and declare the program "neutral with respect to religion." A voucher program without those sections would be more vulnerable in court, the opinion says.
"Without this language, the act may be more susceptible to a [constitutional] challenge," the opinion says. "However, these possible constitutional challenges to HB174 will not doom the bill's ability to stand on its own in creating a voucher program."
Organizers of a petition drive to put the original bill, HB148, before voters are undeterred.
"We are going to continue to collect these petitions to give the people of the state an opportunity to speak on this issue," said Pat Rusk, spokeswoman for Utahns for Public Schools, the coalition of groups organizing the petition drive. "We are not going to be deterred by an opinion."
If the group collects 92,000 signatures - representing 10 percent of voters in the last gubernatorial election from 15 counties - the original voucher law will be put on hold until the public votes whether to overturn it. If the petition drive succeeds, Gov. Jon Huntsman Jr., who released the opinion, said he will call a special election on the issue in June.
After voucher supporters raised the possibility that HB174 could stand alone regardless of the referendum, Huntsman asked for an opinion from Shurtleff.
The opinion agrees with several arguments of voucher supporters - namely that HB174 could stand alone and had been fully funded. "However, there are a few sticking points," it reads.
Namely, the opinion refers to opponents' arguments that vouchers would never have passed the Utah Legislature without the mitigation monies designed to limit financial harm to public schools. Without those monies, which aren't provided in the second bill, the voucher program remaining after a successful referendum might not conform to the "true intention of the Legislature."
"Importantly, courts will look at whether the Legislature would have passed the act without the portions that have been removed," the opinion reads. "The question becomes whether based on legislative history, the mitigation monies were such a fundamental part of the voucher program, that the act would have never been passed without them."
* NICOLE STRICKER can be contacted at firstname.lastname@example.org or 801-257-8999.
* Utah lawmakers enacted the nation's broadest school voucher program this year. It lets all parents of public school children, regardless of income, use some public funds for private school tuition. Barring a referendum or legal challenge, it will go into effect this fall.
* Supporters of the law say it gives parents more school choices, and could improve public schools by easing crowding and bolstering competition for students.
* Opponents of vouchers object to letting parents spend public money on private schools that enjoy less oversight and can choose students based on religion or academics.
* Attorneys on both sides of the issue are split on whether a second law amending the voucher plan would enable the program to proceed regardless of the referendum outcome. Utah Attorney General Mark Shurtleff on Tuesday said the program could proceed under the second law, but may be more vulnerable to a legal challenge.