Lawsuit claims UT School Board selection process biased, unconstitutional; movement for legislative change

ST. GEORGE – Instead of allowing the public to vote for the candidates they want through primaries, what if a state-level committee decided who was qualified to run and who wasn’t?

Every two years the governor chooses a selection committee to receive all the names of people from across the state that want to run for the Utah State Board of Education. Through a series of interviews and committee votes the selection committee narrows the field of prospective candidates – board incumbents and newcomers alike – to three names per district. The names are then forwarded to the governor, who will eliminate one more name, leaving the final two for each district that will appear on the November ballot.

Though the state has used the selection process for years, it has proven controversial.

According to a statement on the Utah Education Association’s webpage, “The current process of selecting school board candidates by a selection committee contingent upon the approval of the governor takes away the voice of the people in the electoral process.”

Unconstitutional process?

The process has also led to two lawsuits. The first involved state board incumbent Denis Morrell in 2008. Merrill’s name was not forwarded to the governor, and thus Merrill was preemptively eliminated from running for reelection. The lawsuit claimed the selection process was unconstitutional, though the judge overseeing the case ruled the process did not violate the Constitution.

The second lawsuit, filed in August 2012, involves eliminated board incumbent Carol Murphy of Midway, Utah; almost-candidate Carmen Snow, of St. George; and  private citizen Stacey McGinnis, also of St. George, who wanted the opportunity to vote for Snow. The three women are named as the plaintiffs in a lawsuit against the selection committee and Attorney General Mark Shurtleff. (Shurtleff represents and is named on behalf of the state; i.e., this lawsuit is also against the state of Utah.)

The Murphy lawsuit claims the selection process violated the plaintiffs’ civil rights, as well as abused a statute governing how state board candidates were selected by applying a broad interpretation of its meaning.

Alan L. Smith, one of the lawyers representing the plaintiffs, said the statute only allows the committee to vet candidates based on their professional qualifications and not on what the candidate’s personal opinions may be concerning education policy.

A list of questions asked state school board candidate hopefuls by the selection committee. Featured here are Carmen Snow’s answers. Snow said it is because of her answers and her connection to Utahns for Public Schools that she was unjustly eliminated as a candidate by the committee. | Image courtesy of Carmen Snow

“The committee shouldn’t get into issues of policy,” Smith said.

In other words, as an employer can only examine the qualifications of an potential hire based on one’s resumé, and cannot discriminate based on issues of race, religion, or political stance – shouldn’t the selection committee be held to the same standard?

The committee was able to gauge the candidates’ opinions through interviews and answers from questionnaires given to each candidate. The questionnaires asked the candidate’s preference on certain items, such as if sex education should be taught in school or if the candidate supported or opposed Utah Core Curriculum Standards. The lawsuit described these items as “two highly contentious issues, both of which have been by ultra-conservative factions of Utah’s Republican Party.”

Also according to the lawsuit, “The committee used these interviews and questions and candidates’ opinions … on points of educational policy in selecting the names of nominees to forward to the governor.”

Predisposed bias?

“(The selection committee) isn’t what it is perceived to be,” Snow said. A portion of the committee favored special interests and was “against public education,” she said. Half of the committee members represent facets of public education, while the other half represent various business interests such as agriculture, construction, finance, and technology.

Snow is the executive director of Utahns for Public Schools, an organization formed in response to the legislature’s push to pass school vouchers in 2007. The group spearheaded an effort to get the voucher legislation on the ballot, Snow said. Because of her association with the group, as well as her anti-voucher opinion, she said the committee refused to recognize her qualifications.

She also said she was angrily denounced by committee member Chris Bleak during her interview before the committee. Bleak is the president of the Utah Association of Charter Schools, “one of many special interest groups which was sympathetic to and supportive of school vouchers,” according to the lawsuit.

The 22-page complaint detailing the reasons behind the lawsuit, namely how the plaintiffs perceive their civil rights have been violated by the selection process. Click to view the PDF file.

Bleak said that Snow’s presence on the school board would cause tension between the board and the legislature. Concerning Snow’s interview, Bleak told The Salt Lake Tribune, “I see a lot of the elements associated with (Utahns for Public Schools) as having been very destructive and advancing some agendas against people in the legislature that I think have been wrong.”

In another article from The Salt Lake Tribune, Bleak also reportedly said the committee did not have a central political philosophy but represented various interests instead. Smith does not agree, and described the committee’s attitude towards individuals like Snow as one of “We don’t want people who ruffle the feathers of the state legislature.”

Of the candidates who were approved by the committee and the governor, Snow said: “The majority is for vouchers and private schools. I’m afraid for the future of public schools.”

Snow plans to run for the state school board again during the next election cycle.

Asking for change

Snow’s opinion is shared by Barbara Corry and Bette Arial, two people who survived the selection process to become the board candidates currently running for School Board District 15 – Washington and Iron counties.

Should the process be changed? Corry’s response: “Absolutely; it needs to go back to an open primary. Anyone who is incumbent also deserves the right to run. Voters should have that decision.”

Arial said the she would like to see the process changed as well, as she finds it “very frustrating.” However, she also said changing the process “should be explored by the people that decide that,” meaning the legislature, acting on behalf of a constituency that cares enough to demand changes to the current system.

“I believe strongly in a representative democracy,” Arial said.

Despite the controversy, Thomas Bingham, chairman of the selection committee, said the process works. He told The Salt Lake Tribune he believes the process makes sense and that he helped design it. “It is a very difficult process, but I think it’s yielding great fruit,” he said.

In its Oct. 5 meeting, 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.

“If it comes back down to the people, it will be better,” Snow said.

“It depends how they implement (the committees)” and how the statute for it will be written and interpreted, Smith said. If the process remains the same, nothing will change, he said.

Attempts have been made by the legislature in the past to dissolve the selection committee and create direct, nonpartisan elections for school board members. Legislation proposed by Jim Neilson and sponsored by Carol Moss during the legislature’s 2011 general session, HB 264, the State Board of Education Member Election Process Amendments bill, would have done just that – repeal laws involving the governor and the nominating and recruitment committee currently selecting candidates and requiring the direct, nonpartisan election of members of the State Board of Education. Ultimately, that bill was rejected in a 28-45 vote.

Ed. Note: The H.B. 264 substitute bill referred to in this report failed in the House in the 2011 General Session with 28 yeas, 45 nays and 2 not voting.  From Southern Utah, Rep. Watkins voted yea, Reps. Last, Vickers, Noel, Clark and Ipson voted nay.

Email: [email protected]

Twitter: @MoriKessler

Copyright St. George News, 2012, all rights reserved.


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1 Comment

  • Gayleen Gandy October 18, 2012 at 2:34 pm

    As a former co-chair of this nominating committee, I was involved in testifying against the actions of the committee that removed Dennis Morrill from the State School Board by not forwarding his name to the governor.

    There is an important piece of information missing at the beginning of this article. The law states that the committee will forward AT LEAST three names to the governor. According to the law that created this committee, every qualified candidate could have their name forwarded to the governor. Unfortunately the special interests who are represented on this committee have determined that this is a good way to eliminate candidates who do not agree with them. The committee must have 6 representative of specific business interests and 6 representative of specific education interests. However, since the charter school representative always votes with the business representative (all of whom are usually paid lobbyists), those representing public education are always in the minority. Instead of passing on all the qualified candidates, the buisness and charter school representatives have always worked together to eliminate candidates that they believe would work against their agendas (which they describe as causing divisiveness).

    For some reason, these special interest lobbyists fail to consider that the constituency of these candidates might want them to oppose or be divisive on these issues. The voting public should be given back the ability to select their own candidates. The process, as it now stands, has given control of the state school board to a handful of specific special interest groups. Of course the governor could appoint less biased representatives to the committee but has never done so.

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