The State Board of Education is asking a judge to throw out a Utah School Boards Association lawsuit disputing oversight of charter schools.

The Utah Attorney General's Office, representing the state board, on Monday filed a motion for summary judgment in 3rd District Court, claiming the USBA's lawsuit hinges on a non-existent statute."The plaintiffs have tried to turn a policy argument into a constitutional argument, and there just isn't a basis for that," said Doug Bates, director of school law and legislation for the State Office of Education. "Their factual claims aren't factual."

The motion memorandum also states the association is suing one of its own dues-paying members, which it is supposed to represent. The motion follows the state board's legal response asking the court to dismiss the lawsuit and award court costs, which are very low - in the hundreds - at this point, Bates said.

The USBA lawsuit, dubbed a friendly declaratory judgment, has been amended to no longer seek court costs. The lawsuit, which asks a judge to decide the constitutionality of the 1998 Utah Charter Schools Act, was filed last month.

Plaintiff attorney Brinton Burbidge is out of town this week and could not be reached for comment.

Charter schools are public schools offering specialized curriculum and more parental choice and involvement. Lawmakers last month authorized $500,000 in start-up funds for eight charter schools under a three-year pilot program.

Two charters receiving state board approval will begin in fall 1999: the Tuacahn High School for Performing Arts in Ivins, Washington County, and the Jean Massieu School, which would offer instruction in American sign language and is seeking space in the Granite or Jordan school districts.

The USBA lawsuit asks the court to interpret the Utah Constitution to determine appropriate oversight of charter schools. At issue is the Utah Constitution's "general control and supervision" clause.

The lawsuit alleges local school boards have control over schools in their boundaries, and that by reaching within those boundaries, the state essentially creates a new school district without a public vote.

But the defendants allege the state board has control over all public schools and programs designated by the Legislature, likening charter school oversight to its supervision of the Utah Schools for the Deaf and the Blind and applied technology centers. The motion memorandum disputes that district boundary changes are subject to public approval.

"The state board always has been supportive of local boards and local control," which is not the issue, Bates said. "The State Board of Education has not come close to using the constitutional authority it has, and the state board has no interest in doing that."

Meanwhile, support for the lawsuit has eroded with some local school boards. At least three - Salt Lake City, Granite and Weber - formally have withdrawn their support of the complaint. That follows last month's 23-22 vote by USBA delegates to press forward with the lawsuit.

Gov. Mike Leavitt also has denounced the lawsuit, saying the USBA should instead put its energy behind charter schools to help them take flight.