Alaska judge strikes down state's cash payments to families using correspondence school programs

An Anchorage Superior Court judge on Friday struck down an Alaska law that allows the state to distribute cash payments to the parents of homeschooled students on the grounds that it violates constitutional prohibitions against spending state money on private education.

“This court finds that there is no workable way to construe the statutes to allow only constitutional spending,” wrote Judge Adolf Zeman, concluding that the relevant laws “must be struck down in their entirety.”

The decision has major and immediate implications for the 22,289 students enrolled in state-operated correspondence programs used by homeschooled students.

Lon Garrison, executive director of the Alaska Association of School Boards, said he believes that with the allotment program eliminated, the state will automatically return to the system it was using before 2014, when the program was created.

Zeman also ruled unconstitutional a law that requires correspondence programs to create individualized learning plans for participating students.

“I’m blown away by his verdict,” said Rep. Jamie Allard, R-Eagle River and co-chair of the House Education Committee. She said she had been expecting a ruling on the funding aspect, but not something as broad as Friday’s decision.

Scott Kendall, the attorney who represented plaintiffs suing the state, said he believes the changes will not disrupt correspondence programs.

“What is prevented here is this purchasing from outside vendors that have essentially contorted the correspondence school program into a shadow school voucher program,” he said. “So that shadow school voucher program that was in violation of the Constitution, as of today, with the stroke of a pen, is dead.”

The change throws a hot potato into the halls of the Alaska Legislature, which has been struggling for months to pass education legislation.

“This is going to become a hot-button legislative item,” said Rep. Justin Ruffridge, R-Soldotna and co-chair of the House Education Committee. “I would imagine that would quickly become a No. 1 legislative priority.”

Sen. Bill Wielechowski, D-Anchorage, also expressed concern.

“It couldn’t have come in some ways at a worse time to do because this, it’s a major, major policy issue. And we’ve got the budget that we’re dealing with — the capital budget, the operating budget, we’ve got energy, a whole host of energy issues, and a whole host of bills that are out there,” he said.

Wielechowski said the attorneys for the plaintiff expect the state to ask for a stay, which would postpone the enactment of the ruling.

“My hope is there is a stay until the school year’s out so that parents can get through the school year,” he said. “And then we’ll see what the Supreme Court says and hopefully the Supreme Court takes it up quickly, picks it up quickly and gives us some final guidance on this.”

The stakes for correspondence programs and public schools in general are high. Since the 2014 law, roughly 10% of Alaska school enrollment has shifted from school buildings to correspondence programs, with the pace of the shift accelerating over the past four years.

Allotment program was

Dunleavy brainchild

Alaska has operated correspondence programs for homeschooled students since before statehood, but only recently have those programs begun giving cash allocations to families.

In 2013, then-Sen. Mike Dunleavy sponsored legislative language that allowed parents of correspondence program students to spend their share of state education money, labeled an allotment, on “nonsectarian services and materials from a public, private, or religious organization.”

Article VII, Section 1 of the Alaska Constitution states in part that “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution,” and Dunleavy simultaneously attempted to amend that section of the constitution.

The constitutional amendment failed, but Dunleavy’s proposal became law the following year, even as some legislators raised concerns that it could be found unconstitutional.

The state began allowing parents to spend correspondence program money on nonreligious materials, but those materials could be purchased from public, private or religious organizations.

After Dunleavy became governor in 2018, the state appeared to expand the ways that allotments could be used.

In 2022, reporting from the Alaska Beacon found several state-licensed homeschool programs had begun allowing participants to use their allotments to pay for classes at private and religious schools after Dunleavy became governor.

Jodi Taylor, the spouse of Attorney General Treg Taylor, wrote publicly that year about her plans to use correspondence allotments for private school tuition and wrote instructions to help other parents follow suit.

Two months later, Deputy Attorney General Cori Mills issued a legal opinion concluding that the practice did not violate the Alaska Constitution to pay for one or two classes, while saying that the money can’t pay for most of a student’s private school tuition.

The idea appears to remain widespread today. The Alaska Policy Forum, a limited-government group that once included Jodi Taylor on its policy board, listed nine programs that permitted allotments to be spent on private schools.

Teachers and parents

file lawsuit

In response to the state’s decision, a group of four teachers and parents filed suit against the state’s education commissioner and the state of Alaska in January 2023, alleging that the state’s system of correspondence program allotments “is being used to reimburse parents for thousands of dollars in private educational institution services using public funds thereby indirectly funding private education in violation … of the Alaska Constitution.”

It was the first time that the constitutionality of the program, then almost nine years old, had been challenged.

The plaintiffs were represented by Kendall, an attorney with the firm Cashion, Gilmore and Lindemuth. They argued in written filings and in an October oral argument that the allotment program violated the plain language of the state constitution.

In its section on public education, the constitution says: “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.”

Attorneys representing the state of Alaska argued that the allotment program should be preserved because even though a school district might use the program unconstitutionally, “the statutes also have many constitutional applications.”

Judge Zeman, examining the legislative history of the program, concluded otherwise, saying that “the statutes were drafted with the express purpose of allowing purchases of private educational services with the public correspondence student allotments.”

He went on to say that there was no way for the state to repair the unconstitutional language by regulation and that he could not rule only part of the law unconstitutional.

“Parents have the right to determine how their children are educated,” Zeman wrote. “However, the framers of our constitution and the subsequent case law clearly indicate that public funds are not to be spent on private educations.”

Attempting to preserve part of the law would amount to effectively writing a new law, Zeman concluded.

“If the legislature believes these expenditures are necessary—then it is up to them to craft constitutional legislation to serve that purpose—that is not this Court’s role,” Zeman said.

‘Huge ramifications’

Wielechowski said he was stunned by the ruling. Several legislators said they had expected Zeman to preserve the allotment program but limit its use.

“I read the whole thing — and then I got to that last page. And I didn’t expect that, for them to strike down the entire statute, the entire section. I was surprised at that. And it’s got potentially huge ramifications. Really enormous ramifications,” Wielechowski said.

Garrison said he was “pretty excited” about the ruling because he has long had concerns about state education money going to private and religious organizations.

Those concerns have been echoed by others in the state Capitol during this year’s debates over a multipart education bill. Dunleavy encouraged lawmakers to increase the number of state charter schools, but opponents of the idea feared that the combination of allotments and charter schools would amount to a “shadow school voucher program,” as Kendall said.

“Really what was going on here was the reimbursement of state funds to pay for tuition at private schools. That was really, in a nutshell, what this case was all about,” he said. Now that cannot happen any longer, but Kendall stressed that the ruling does not affect parents retroactively.

Garrison said that those fears were at the root of his opposition to Dunleavy’s charter reform proposal, which would make the state Board of Education and Early Development a charter school authorizer. He said that could lead to privately operated charters. Garrison still opposes the policy, but this ruling puts that concern to rest, he said.

NEA-Alaska, the state’s largest teachers’ union, funded the lawsuit against the state, and afterward, it issued a congratulatory email to supporters.

“We’re still reading through the entire ruling but it’s fair to say that this is a big win for public education in Alaska,” NEA-Alaska President Tom Klaameyer said in the email. “I wanted to say thank you, particularly to our Board of Directors, for believing in this lawsuit and putting our money where our mouth was to uphold the Alaska Constitution.”

The Alaska Department of Law had a different conclusion.

Responding by email Friday evening, Mills said, “We have just received this 33-page decision from the Superior Court a few minutes ago and are beginning to review. But we can see that the court apparently struck down the correspondence study programs as contrary to the state Constitution. The ruling is very concerning. This is a public school program for public school children. This could result in taking away important public education opportunities from Alaskan families. We are evaluating next options.”

Allard said she doesn’t understand the resistance to the allotment program and its uses.

“We’re trying to educate our children. Why are we trying to fight the different ways that children learn?” she said. “If we want a better education system, then we need to be flexible.”

Appeal is likely,

experts believe

Though the state of Alaska has yet to say whether it will appeal Friday’s decision, Kendall, Wielechowski, and others said they expect that the Alaska Supreme Court will eventually be asked to examine Zeman’s conclusions.

It’s also possible that the decision could be stayed — or put on hold — until the end of the state’s fiscal year on June 30 to avoid disruptions for students in correspondence programs. Wielechowski said he would support such a stay.

It’s possible that the Alaska Supreme Court won’t have the final word on the topic, either. A decision by the state’s high justices could be appealed to the U.S. Supreme Court, and Allard said she believes that’s likely.

The U.S. Supreme Court ruled in 2022 that Maine could not prohibit a state-run voucher program from being used at religious schools. That decision followed a similar one out of Montana in 2020.

“There is no doubt, based federally, that they support public funding for all schools, including faith-based,” Allard said of the Supreme Court justices.

But Wielechowski, a practicing attorney, said those cases involved instances where states attempted to allow public money for non-religious schools but not religious ones.

Here, Alaska’s Constitution prohibits public money for religious and non-religious private schools alike, treating them equally.

“The U.S. Supreme Court would have to fundamentally say that public funds must be used for private education and religious education,” he said. “I would be shocked if the Supreme Court said that.”

The Alaska Beacon is an independent, donor-funded news organization. Alaskabeacon.com.