“Basically, the procedure by which candidates for the state board of education are nominated is a very strange process,"Attorney David Irvine says.
Irvine is representing state school board incumbent Carol Murphy of Midway and two other’s in a lawsuit filed this summer in federal court. He also represented former state school board member Dennis Morrill in a previous case that was dismissed in the state's 3rd district court. Both lost their bids for re-election, ousted not by way of the democratic process, but rather by a State School Board recruiting and nominating committee. Irvine says the process raises a number of questions.
“a: whether that nomination process satisfied the constitutional requirement that members of the board be elected by the people," Irvine questions. "Because the way the process is set up, the people have a choice between Tweedle Dee and Tweedle Dum.”
The state legislature in 2002 authorized the governor of Utah to select every two years, a 12-member committee made up of business and education interests tasked with recruiting and vetting potential candidates to the state school board. After a lengthy interview process, the committee forwards a handful of names to the governor who then narrows the list down to two candidates for each district.
Besides leaving voters out of the process, Irvine worries it infringes on a candidate’s right to free speech. State law directs the committee to choose candidates based on qualifications and relevant experience, but it doesn't require consideration of a candidate’s position on specific policy issues like sex education or vouchers.
“Those kinds of policy determinations in any other election context are determined by the voters themselves," Irvine says.
The committee this year required potential candidates to disclose those positions. Irvine argues this is a way to systematically remove candidates who might stand at odds with the committee’s beliefs.
He says the process is contrary to the whole notion of representative democracy.
But Republican Senator Howard Stephenson supports the current process. He’s served in the state legislature for two decades, enough time to see how the board has changed its approach.
“They manage a three-billion-dollar enterprise and they are now acting more like business people, than simply people who want to preserve the status quo of our education system," Stephenson says.
Stephenson says 20 years ago, the board was a rubber stamp for the state superintendent and was under more pressure from the teachers union. But now, he says it’s more inclined to support reform. He points to a pay for performance pilot program the board recently embraced.
He says that’s why it’s essential for committee members to discuss policy issues with candidates.
“These are not supreme court justices that have to decide on an impartial basis how to rule on the law, these are people who are going to be setting policy," Stephenson says. "Asking policy questions reveals a lot about the qualifications of a candidate, regardless of their position on those policies. “
Stephenson says it’s a fair system because the committee is appointed to represent the citizens of Utah in a balanced way.
In October, the state school board passed a motion to seek legislators who will sponsor a measure to dissolve the state-level selection committee in favor of district-level committees instead, a model that existed under former Republican Governor Mike Leavitt. Debra Roberts is chair of the state board of education. She says that process ensures board members have local ties to each region.
“Is it getting right straight back to the democratic voice? No it’s not the perfect way to do it," Roberts says. "But at least it is a closer process to those voices and those local needs and those local understandings to have someone go in and be put on the ballot from their area that really understands their unique needs, plus it’s a much better recruiting process.”
Roberts says most board members would prefer an open non-partisan primary. But Roberts says until citizens take responsibility for vetting and understanding candidates, selection committees will likely remain part of the process.
“We get the link between education and our local boards of education," Roberts says. "But we haven’t understood that there is this body that is created by the constitution of Utah, that is given general control and supervision of schools, has responsibility over licensure of teachers, has responsibility of putting appropriate standards in place for all the curricular areas, has all this responsibility, yet too many in the state don’t even understand that the board exists.”
Christine Kearl is the Education Director for Governor Gary Herbert. She worked closely with the governor to select the final candidates for state school board this year.
“I know he believes that the current system is very flawed and he would like to see changes made," Kearl says.
Kearl believes recreating regional selection committees would mean more work for the governor who would have to appoint them, but it could be worth the trade-off for more local control, which Governor Herbert supports.
She says when the final list of names cross the governor’s desk, he and his staff interview the candidates again before making a decision and that a candidate’s position on specific policy issues doesn’t play a large role in that decision.
“We didn’t want to have everyone representing one facet of education or one facet of business, we were looking for a broad spectrum of representation and gender and ethnicity as well," Kearl says.
This year, Governor Herbert selected all five incumbents the committee forwarded to him. Two incumbents, District 12’s Carol Murphy and District 8’s Janet Cannon didn’t clear the first hurdle.