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The following op-ed, written by Connor Boyack, was published this weekend in the Daily Herald.
Earlier this month, Libertas Institute announced a new lawsuit against Common Core here in Utah. There are six plaintiffs: two teachers, two parents of school aged children, and two school board members. None of them were consulted prior to adopting the Common Core standards in our state.
That may sound a bit silly — who are they to think they should have been consulted? As it turns out, state law requires it; § 53A-1-402.6 of the Utah code requires the Utah State Board of Education to establish and implement standards “in consultation with local school boards, school superintendents, teachers, employers, and parents.” The point of this law is to ensure local control and buy-in of whatever standards the Board adopts.
That didn’t happen with Common Core — and it should have. Here’s what actually happened.
Editor’s note: Lyft is one of two popular ride-sharing services (Uber being the other) that have faced significant opposition from traditional competitors such as taxi companies. Governments around the country have attempted to enforce regulations on them. Libertas Institute’s president recently got a ride using Lyft and documented his experience here.
The woman interviewed in this article is one of several Utah drivers who have been issued extremely costly citations in recent weeks for offering a ride to a consenting passenger.
Libertas Institute: Tell us about yourself.
Amanda Wardell: I’ve lived in Salt Lake City for about three years. I’m a single mother of a seven-year-old daughter—her father’s rights were terminated, so I get no financial support from him. I’ve been the sole provider for her. I just finished school to get my massage therapy license, so hopefully that will give me some opportunities.
I worked as a health inspector in Texas for a few years, but when I moved to Utah I found a job with a private company which was up to 75% travel, so I was never home. My daughter’s grades were bad, she’s in trouble all the time. Not having me around, I just couldn’t do that anymore. So I had to switch fields, and I tried to find other jobs that didn’t require traveling so much, but I didn’t have any luck.
Under Utah law, cities are authorized to require permits of business owners—including home business owners—for “purposes of regulation and revenue.” A bill attempting to restrict that authority, specifically carving out an exemption for at-home business owners, struggled in committee and was referred to interim study.
That interim study came in the form of another committee meeting a few weeks ago, in which the same debate was had; many legislators struggled to understand how or why the legislature should “impose” something upon the cities. They voiced objections to the thought of “micro-managing” cities, and indicated a preference to allowing cities to do as they please.
What wasn’t brought up, however, was the fact that the legislature has in the past—in many cases—restricted the authority of local governments to ensure a state-wide policy is followed rather than enabling a patchwork of different treatment for citizens around the state. As it relates to the home business exemption, this also makes sense. Why should a (very part time) seamstress earning $200 a year on the side be forced to pay a $150 license fee for the privilege of working in her own home, while another seamstress earning the same amount in another city be free from that burden?
As mentioned, there are many instances in Utah law when cities and counties are prohibited from doing something. Here are a few examples.
Utah law explicitly recognizes the “individual right to keep and bear arms” as “a constitutionally protected right under Article I, Section 6 of the Utah Constitution.” As such, “the Legislature finds the need to provide uniform civil and criminal firearm laws throughout the state.”
Part of that uniform law includes the following:
(2) Except as specifically provided by state law, a local authority or state entity may not:
(a) prohibit an individual from owning, possessing, purchasing, selling, transferring, transporting, or keeping a firearm at the individual’s place of residence, property, business, or in any vehicle lawfully in the individual’s possession or lawfully under the individual’s control; or
(b) require an individual to have a permit or license to purchase, own, possess, transport, or keep a firearm.
Many cities might like to enact policy restricting or regulating firearm possession and transportation. Some would jump at the chance to collect revenue by requiring a permit and license. This power is denied to them by the legislature, creating a state-wide policy that recognizes and protects the right to acquire and possess firearms.
Andrea Scannel, a Utah mother, was at Mount Logan Middle School for a government-administered “free lunch” program for her three-year-old. While there, she nursed her infant. She was given a letter by the school’s principal, delivered by an employee, passive-aggressively inviting her to “use discretion” and to “find a way to discreetly feed the baby, whether with a small blanket or in a more private area.” Andrea was taken aback by the “request,” later commenting: “I just never expected anyone to have an issue with me feeding my baby while everyone is there to feed their children.”
Utah law states, “A woman’s breast feeding, including breast feeding in any place where the woman otherwise may rightfully be, does not under any circumstance constitute an obscene or lewd act, irrespective of whether or not the breast is covered during or incidental to feeding.”
It further stipulates that local governments “may not prohibit a woman’s breast feeding…” Some of the more conservative cities might otherwise wish to regulate how much breast can be exposed, and when and where, but this power is denied to them “irrespective of whether the breast is uncovered during or incidental to the breast feeding.” Mothers around the state now take comfort in a general recognition that their nursing of their infants is a legally protected activity.
One might imagine what Provo, Utah would do in regards to regulating alcohol availability if it had the opportunity, but Utah law states that it, and other cities, “may not regulate in relation to” an issue “related to alcoholic product control” if state law already addresses that issue, unless the legislature “expressly granted” authority to do so.
If the legislative committee reviewing the business licensure bill imposed their same logic on this issue, some cities such as Park City and Salt Lake City would have free-flowing booze while others, such as Provo or Orem, would be dry cities. The legislature has previously decided on requiring a more uniform set of policies throughout the state, denying authority to the cities to act contrary to its edicts.
Just a few years ago, the legislature passed a bill that prevents local governments from enacting “an ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from communicating or cooperating with federal officials regarding the immigration status of a person within the state.”
Whereas a more liberal city council might want to prevent coordination such as this to provide sanctuary to so-called “illegal immigrants,” cities and counties around the state have been denied the ability to intervene.
More examples exist, but these suffice to show that the legislature is perfectly comfortable establishing state-wide policies on matters where there otherwise might be diverse interests among Utah’s 243 cities and towns.
Of course, just because the legislature has done something in the past is not reason on its own to repeat it in the future. However, in cases where fairness and rights are involved, it makes more sense to have a uniform policy that recognizes and protects that right.
The right to work has long been recognized by the courts in Utah. For example, in Leetham v. McGinn: “The right to engage in a profession or occupation is a property right, which is entitled to protection by the law and the courts.” In another case, McGrew v. Industrial Commission, we read this:
[O]ne may be said to have a special property in his profession or calling by means of which he makes his support, and he can be deprived of it only by due process of law. . . . . The right to work, the right to engage in gainful occupations, the right to receive compensation for one’s work are essentially property rights. So too is the right to enjoy the benefits resulting from the work of one so employed. So also the right to engage in commerce or in legitimate business is property.
For this reason, we support a state-wide restriction on a city’s ability to siphon money from its residents through permits for operating businesses inside the home that do not impact the public. Legislators expressing concern over stepping on the toes of cities seems, in the end, to be more a concern of money than authority; local governments are not going to give up an estimated $4 million in revenue without a fight.
The following op-ed, written by Connor Boyack, was published this weekend in the Deseret News.
Two weeks ago, Governor Herbert held a press conference to announce that he’s “listening” to Common Core critics and that he has asked the Attorney General to conduct a “thorough legal review” of these untested, yet quickly adopted, education standards.
Whether or not the Governor is seriously concerned about Common Core’s legal implications—given re-election pressures, it’s reasonable to suggest his inquiry may be more superficial than substantive—he’s right to seek a review. Libertas Institute has identified numerous violations of the law in an investigation ongoing since January.
Unfortunately, Herbert and others are primarily focused on the “federal entanglement” as a result of the strings attached to federal grants sought out and obtained by the Utah State Board of Education. This is too narrow a focus for reviewing the full legal landscape of Common Core. Other issues exist and serve as the basis for a lawsuit we have organized.
UPDATE: Kendell’s letter has now been sent to the Board, and includes the names of dozens of businesspeople and local school board members. See the letter here.
Two weeks ago, Governor Herbert called for a “review of our existing [education] standards to make sure they truly prepare our students for college and careers.” As part of that, Herbert organized a committee tasked with the review, and appointed as its chair one Dr. Rich Kendell, “a former university president, school district superintendent, and education advisor to former Governor Mike Leavitt.”
“He has a unique perspective,” Herbert added, “that will guide a comprehensive examination of the standards.”
Evidently that “unique perspective” includes an existing bias and behind-the-scenes advocacy that violates any semblance of independence or impartiality in the review Kendell has been charged with leading. The Governor also said, “I don’t want to presuppose the outcome of this review,” but perhaps Kendell already has.
Libertas Institute obtained an email written on July 30, 2014, by Dr. Kendell, addressed to Patti Harrington, Associate Executive Director of the Utah School Board Association (USBA) and Executive Director of the Utah School Superintendents Association (USSA). It includes a drafted letter (view the PDF here) and this text:
Conservatives in Utah and around the country laughed to scorn then-Speaker of the House Nancy Pelosi for suggesting, after passage of “Obamacare,” that Congress had to pass the bill so that the people could then find out what was actually in it.
As it turns out, this strategy hits a bit closer to home.
The adoption of Common Core by the Utah State Board of Education followed a similar model of act-now-ask-questions-later. In June 2010, the Board voted to “adopt the Common Core… as a framework on first reading [and] between now and the next meeting the Board Members study the standards…” Put differently, the Board gave initial approval of the new (and untested) standards, pending further approval, without having studied them first.
But it gets worse.
“You never want a serious crisis to go to waste, it’s an opportunity to do things you could not do before.”—Rahm Emanuel
Following Rahm’s rule for expanding government power, 216 years ago today, the US Congress, controlled by the Federalist party, and on the ninth anniversary of the start of the French Revolution, passed An Act for the Punishment of Certain Crimes against the United States—also known as the “Sedition Act.” The law made it unlawful to “combine or conspire together to oppose any measure of the government of the United States.” It also restricted speech that was critical of the federal government in the name of protecting national security. While the Federalists were concerned about the threat of revolution in the United States following the example in France and the possibility of war with France following the diplomatic snafu of the XYZ affair, most historians agree that a driving force behind the act was to suppress Democratic-Republican party opposition to the Federalist-controlled government. Such an act would have been unthinkable ten years earlier but on the backdrop of political turmoil and dubious national security claims, Federalists were able to expand central authority to neuter opposition.
Many Democratic-Republicans supported France during the revolution and some sympathized with the sentiments of the revolutionaries. They also opposed the Federalist policies that led to high levels of national debt, a standing national army, government-subsidized monopolies, and the recent levying of the first national tax in the form of the whiskey tax of 1791. In 1791 the national debt stood at $1.84 billion in 2009 dollars and accounted for 38% of GDP at the time—the highest relative debt level the country would see until the Great Depression. Frustration at economic policies was exacerbated by Treasury Secretary Alexander Hamilton’s central planning ideas for the subsidization of the manufacturing industry. Opposition to federal power only increased at the thought of a federal force of 12,950 troops raised by President Washington to quell the Whisky Rebellion. It was on this backdrop that political opposition to the Federalists was at a fever pitch.
“It is well to be up before daybreak, for such habits contribute to health, wealth, and wisdom.” –Aristotle
Perhaps it was this Aristotelian proverb that led Congress to pass the Standard Time Act of 1918 establishing both a standard time and the practice of clock shifting known as Daylight Saving Time (DST)—or perhaps it was the industrial war effort of World War I instead. Either way, the clock shifting practice has been controversial over the years as it was repealed, vetoed, over-ridden, reinstated temporarily during World War II, observed in select localities, mandated nationwide, extended in duration by months for a brief period, and finally, most recently, extended in duration permanently by a few weeks.
Currently, observance of standard time and Daylight Saving Time is governed by the Uniform Time Act of 1966 as amended by the 2005 Energy Policy Act which extended the saving period by a few weeks starting in 2007. Under the act, individual states are permitted to exempt themselves by state law as have Alaska and Arizona.
Recently, Utah lawmakers passed HB 197 which directed the Governor’s Office of Economic Development (GOED) to conduct a public meeting to gather comments and input on the impact of exempting Utah from daylight saving. The meeting was hosted in the Clarke Planetarium in Salt Lake City where a demonstration of various sun movements could be simulated. GOED has created a website to gather votes and opinions on the issue. Thus far, it seems those individuals most ardently opposed to DST have volunteered their opinions (68%) while many unaware of the issue may not have chimed in yet. Whether you favor or oppose government mandated clock shifting, GOED wants to hear from you.
“The Constitution… meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” –Thomas Jefferson to Abigail Adams, 1804
In Thomas Jefferson’s analysis a Supreme Court that can decide the constitutionality of laws for all other branches renders it a “despotic branch.” Certainly many would agree that the Supreme Court has become far more powerful than envisioned by the framers who sought a balance of power between co-equal branches. As the Court acts to overturn congressional and presidential action, many lament that the only seeming check on the court is the selection of the justices themselves. However, the recent Hobby Lobby case pulls back the curtain on a significant area of congressional power that can limit court action.
In the recent Supreme Court case of Burwell v. Hobby Lobby, the Court decided in a 5-4 decision that Hobby Lobby’s religious freedom in deciding not to cover certain birth control treatments through its employee health care plans is protected under the 1993 Religious Freedom Restoration Act (RFRA). Congress passed RFRA in order to reverse a previous court decision in the 1990 case of Employment Division v. Smith. In the Smith case the Court declined to acknowledge Native American ritual use of peyote as protected under the Free Exercise Clause of the First Amendment. The decision seriously narrowed the “compelling interest” doctrine where the Court previously placed a high burden on government regulations that threaten religious practices. In response, Congress—in a nearly unanimous vote—passed RFRA to statutorily require that strict scrutiny be used by the Court in assessing government action that burdens a person’s exercise of religion. That statute played a key role in the Court’s decision for the Hobby Lobby case as justices acknowledged that RFRA protects against substantial government burdens on the free exercise of religion by closely held for-profit corporations.
While proponents of the Affordable Care Act’s mandates on employer coverage are outraged at the thought that Congress cannot micromanage the employee benefit decisions of private employers on account of religious beliefs, they should remember that it was also Congress who decided to protect religious liberty long before it sought to micromanage employer sponsored health care plans. The important distinction here is that the latter is a protection against government power while the former is an expansion of it.