Trent Nelson,
Governor Gary Herbert delivers the state of the state address at the state capitol building in Salt Lake City, Tuesday January 27, 2015.

Gov. Gary Hebert, who in less than a month becomes chairman of the National Governors Association (NGA), has asserted that “clearly the heart and soul of my efforts is going to be on federalism.” He went on to say, “most people don’t even know what the definition of federalism is. If you did a survey, you’ll find most people think it has to do with the federal government as opposed to states' rights issues.”

Well, it appears Gov. Herbert and his staff may need their own lesson on federalism.

On June 19, the governor’s education adviser, Tami Pyfer, will ask the Utah State Board of Education to join Gov. Herbert in requesting that Congress federally legislate his role in public education by passing NGA-proposed amendments to the Elementary and Secondary Education Act (ESEA). Specifically, Gov. Herbert wants the board to direct the state superintendent to co-sign an NGA drafted letter that asks Congress to make governors “key partners” in public education.

While the governor’s goal of becoming a key partner in public education is laudable (even essential), his requested means is confusing from one espousing increased states’ rights and federalism. Why is an act of Congress needed for such a partnership?

In promoting the NGA’s proposed amendments to the ESEA, Gov. Herbert seeks signatory authority for certain aspects of public education like the state’s Title I plan. The effect of these amendments will be that even if the Utah State Board of Education, a body elected by Utah’s citizens, unanimously supported a Title I plan that the board’s own staff would be responsible to implement, Gov. Herbert could singlehandedly kill the plan by withholding his signature. That feels more like a solo actor than a key partner.

While many states won’t feel the effect of such congressional legislation because governors in those states already have control of public education policy, Utah will. Article X of the Utah Constitution specifically designates an elected board to lead public education in the state. Thus, if the NGA’s proposed amendments to the ESEA are enacted, Congress would be attempting to override the Utah Constitution. That’s not right. And it’s not federalism.

5 comments on this story

There are at least two ways that Utah’s governor could have a greater role in public education without going to Congress for a federal mandate. A governor could forthrightly ask the state Legislature and the Utah people to amend the Utah Constitution. In this instance, that seems extreme.

Better yet, a governor could make concerted efforts to build a personal working relationship with the Utah State Board of Education and the state superintendent. In my experience, sitting together to discuss and work through tough issues is how to create key partnerships and find mutually acceptable solutions.

There is no need for Congress to mandate such a partnership. The Utah State Board of Education should not request the NGA’s proposed amendments to the ESEA.

Jonathan Johnson is chairman of Utah-based Overstock.com and Promote Liberty PAC, a political action committee devoted to increasing liberty in Utah.