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The Slippery Slope of HOPE: Where the HOPE Scholarship goes wrong

Monica Wilbur
February 18, 2022

Some Utahns continue to claim that HB331, the Hope Scholarship Program bill, has sufficient protections against government overreach and regulation, because the intent behind the bill is good. And maybe it is, but the problem with good intentions is that they’re no guarantee of good outcomes.

So let’s take one (HOPEfully) last look at how the HOPE Scholarship bill will result in parents and private schools losing more in the long run than they gain in the short term, as even the best of intentions will fail them.

Let the Horse Trading Begin

House bill sponsor, Candice Pierucci, upon receiving feedback from many sources on HB331, issued the following press release:

The highlighted lines show two things:

The sponsors of the bill are responding to concerns about the bill by promising to add more regulation, not less.
The student eligibility requirements are no longer limited to income but expanded to include subjective “safety” criteria.

If this isn’t troubling enough, consider what the bill in its current form already gives the government power to regulate. Let’s start by looking at lines 316-317 in the bill, which read:

Early in the bill’s language we see the state board, or USBE, may “regulate and take enforcement action as necessary…in accordance with Section 53E-3-401.”

Let’s look at everything this state code gives the USBE power to “regulate” and “take enforcement action” on

This statute shows the broad “general control and supervision” authority vested to the USBE. In fact, it further endows the USBE with specific control of any “education entity” that receives a distribution of state funds by allowing the making of administrative rules, which have the effect of law.

The bill sponsors would have you believe that HB331 protects against USBE overreach through the following lines:

Let’s address the highlighted parts to better understand why this “nullification” clause really doesn’t guard against additional regulatory interference.

First, lines 454-457 say that nothing in the bill grants “additional authority” to or “expands the regulatory authority” of a state agency. It doesn’t need to grant any extra authority–by simply putting the administration of this program under the purview of the USBE, the bill itself is a de facto expansion of the USBE’s authority. The USBE already has the power to write rules, regulate educational goods and services, and manage any education entities allowed by statute; should this bill pass, this means private and home-based schools that accept the corresponding funding would now come under that same USBE control.

Second, lines 463-466 say that “Except as provided in Section 53F-7-403 and, respectively, Section 53F-6-408 or 53F-6-409, a qualifying service provider may not be required to alter the qualifying service provider’s creed, practices, admission policy, or curriculum in order to accept scholarship funds.”

The operative words in those lines are “except as provided.” Let’s look at what kind of alterations may be required regarding a private school’s creed, practices, admission policy, and curriculum, or a homeschool’s operations:

In both sections 53F-6-408 and 53F-6-409, all Eligible Schools and Eligible Service providers must comply with the “antidiscrimination provisions of 42 U.S.C. Sec 2000d,” which have been interpreted by executive order this way:

There’s no escape clause for this compliance with Federal regulation. And the interpretation and enforcement of this provision by Federal and state government through the USBE opens up private schools and home school recipients of HOPE Scholarship funds to unprecedented government intrusion.