A Superior Court judge in Anchorage has found a key benefit to families who choose certain types of homeschool violates the state Constitution. The ruling has to do with correspondence school allotments. Those are cash payments to families of homeschooled children meant to reimburse the cost of things like textbooks, services and even private school classes.
Here’s what to know.
What does this ruling say?
The ruling recaps the case so far and the laws at issue.
In January 2023, four parents of school-age children sued, challenging the constitutionality of a 2014 law “authorizing school districts with correspondence programs to provide an annual student allotment to a parent or guardian of a student enrolled in the correspondence study program for the purpose of meeting instructional expenses for the student.”
The law allows families to purchase “nonsectarian services and materials” from public sources, like school districts, in addition to “private or religious organization(s).” The purchases have to be approved by the school district and abide by state standards, including by coming up with an Individual Learning Plan. The allotments can be up to $4,500 per student per school year.
Judge Adolf Zeman found that system unconstitutional. He found that it violates Article 7 of the Alaska Constitution, which says, in part, “No money shall be paid from public funds for the direct benefit of any religious or private educational institution.” Basically, the allotments are paid to parents, some of whom spend them on private school courses, and that’s unconstitutional, according to the ruling.
And the judge didn’t just invalidate spending on private or religious schools — he found that there was no way to narrow the law enough to be constitutional and tossed out the whole correspondence school allotment system. So providing allotments to buy textbooks, public school courses, activities — all of that is now invalidated, as is the law that lays out what an individual learning plan is.
“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,” wrote Judge Zeman, who was appointed to the bench in 2020 by Gov. Mike Dunleavy.
How did this system come about?
Basically, the allotment system is an effort to give students and families more choices over their education.
In the ruling, Zeman reaches back to legislative debate that began just over 11 years ago in 2013. Then-Sen. Mike Dunleavy sponsored the bill, and he pitched it to lawmakers alongside a constitutional amendment, appearing to acknowledge that the Alaska Constitution doesn’t allow public money to be spent on private school classes.
“A parent could decide, ‘I want my child to take a Latin course at Monroe Catholic.’ The teacher could agree to that in the ILP. Currently, we cannot do that under the state of, under the current constitutional language,” Dunleavy said in his initial presentation of Senate Bill 100. Language from that bill was later incorporated into House Bill 278, which passed into law in 2014.
Of course, correspondence learning and homeschool have a long history in Alaska. Prior to 2014, said Lon Garrison of the Association of Alaska School Boards, correspondence students would learn from curriculum provided by their local district or a statewide homeschool program.
That changed with the allotment program, Garrison said.
“It gave that opportunity for parents to really kind of determine what they wanted in terms of curricular material and instructional materials,” Garrison said.
But what allotments were spent on changed over time, said Scott Kendall, an attorney representing the plaintiffs. Around 2020 or 2021, he said, private schools began promoting the idea of dual enrollment, essentially using the allotments for private school tuition.
“In fact, you would enroll in a private school, and they would enroll you in the correspondence program, and you would basically just submit your tuition bills as those were, in fact, expenses related to correspondence school, or homeschooling, and then you get paid back,” Kendall said.
Jodi Taylor, the wife of Alaska Attorney General Treg Taylor, wrote an op-ed in the Anchorage Daily News detailing exactly how parents could use the correspondence school program to pay for private school tuition. She used a private Catholic elementary school as an example.
A few months later, the head of the Department of Law’s Civil Division, Cori Mills, issued an opinion saying that allotments could likely be spent constitutionally on private or religious school classes, but could likely not be used to pay for full-time enrollment in a private school.
Proponents, including Jodi Taylor in her op-ed, say the system gives families the choice to pursue the education they want for their children. Attorney Kirby West of the Institute for Justice, which argued in favor of the allotment program, said parents use their allotments for all manner of things.
“Online courses through public universities is a really common one, to either supplement homeschooling curriculum, or just standalone enrollment in college courses from public universities. Many, many parents do use the allotment for tuition at private school,” West said, including her clients, who she said use it for tuition at a Catholic school in Anchorage.
What are people saying about the ruling?
Unsurprisingly, the plaintiffs say the judge’s ruling is sound. And the judge actually went further than Kendall asked. He asked them to invalidate spending on private or religious schools, and the judge said there’s no way to make the rest of the law constitutional and threw the whole program out.
Meanwhile, Attorney General Treg Taylor says the ruling is flawed.
“I don’t agree with the logic that he applied to the ruling,” Taylor said. “He made two statutes completely unconstitutional, which I think was unnecessary. And so I think he, his decision went overboard in what I think was within the law.”
He said the issue has his and Gov. Mike Dunleavy’s attention, and they’re seeking a stay and an appeal. He declined to say whether public money should be spent on private or religious schools.
In a prepared statement, the head of the Department of Law’s Civil Division, Cori Mills, said 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,” Mills said through a spokesperson.
Kirby West, the Institute for Justice attorney, says they also plan to appeal it to the Alaska Supreme Court. She said the allotments aren’t a “direct benefit” to a private or religious school described in the Constitution — they’re payments that parents can spend on all manner of things.
“If the state, for example, created a program that was giving a monthly allowance to people to purchase food, no one would think right that that is a direct benefit for Walmart, or Fred Meyer or another grocery store, because the state doesn’t know how people are going to spend their money,” West said. “They don’t know what they’re going to buy or where they’re going to buy it.”
Basically, the people getting the “direct benefit” are the parents — not private or religious schools.
How are lawmakers reacting?
Leaders in the state House and Senate say they’re considering their next steps. Kendall says the solution could be simple — because the constitutional issue has to do with private and religious schools, he said lawmakers could simply pass a bill that says allotments can’t be used at those kinds of schools.
And it’s early, but the ruling has policymakers’ attention. Speaker of the House Rep. Cathy Tilton, R-Wasilla, said her Republican-led majority caucus wants to address the issue.
“It will be a high priority,” she said. “We’ll be talking about it as a full caucus here in the next day or two to find our path forward.”
Meanwhile, Sen. Cathy Giessel, R-Anchorage, a self-described “veteran homeschool mom” who co-sponsored the allotments bill alongside Dunleavy, said the judge got it right.
“I actually think it was a really sound decision,” Giessel said. “When I realized last summer that promotional statements were being made about how to apply these allotments, that this had gone way beyond what I had pictured when the bill was on the floor in 2014.”
And Rep. Justin Ruffridge, R-Soldotna, a co-chair of the House Education Committee, said the Legislature should act “this session, in my opinion.”
“I think there’s some concerns with how some of the funds were used, but overall, I support correspondence schools in the state,” Ruffridge said. “I think there should be allotments for those kids to be able to use and go to school with. so I think there needs to be some work done to make sure that that can continue.”
Asked whether he believes it’s appropriate for allotments to be spent on classes through private or religious schools, Ruffridge said flatly, “No.”
Rep. Dan Ortiz, I-Ketchikan, said the judge’s ruling is “an accurate interpretation” of the state Constitution and said he believes the House’s largely Democratic and independent minority caucus would support legislation that would make the program constitutional.
“I think we’re going to be supportive of trying to come up with a solution that works with the Constitution and that protects, continues to provide the opportunity for students to receive their schooling through correspondence,” Ortiz said.
And Sen. Jesse Kiehl, D-Juneau, said he believed the Legislature could pass language fixing the constitutional issues with the allotment system alongside a broader, long-term school funding increase.
“I think any opportunity we can find to increase the (base student allocation), without compromising Alaska’s constitution or good education system, we should take,” Kiehl said. “I think that if there needs to be a bill, to keep a strong correspondence, homeschool support system, that’s another great opportunity to fix that problem while we fix the funding.”
So, while there seems to be broad agreement that the issue should be fixed, when and how to do so seems to be an open question.
What does this mean for parents and students, and what lies ahead?
Those are both very hard to answer at this point, but the changes are not expected to take effect this school year. The administration says there are about 24,000 students who could be affected by the ruling. Education Commissioner Deena Bishop said she plans to send a letter to school districts with more details of the road ahead, but she said the plan for now is to stay the course.
“I will be sending out a letter today to all school districts with some direction,” Bishop said. “At this point, we’d like them to continue to finish out the year as they’ve been working.”
Kendall says the plaintiffs plan to seek a stay, putting the ruling on hold, until the end of the fiscal year in June in order not to disrupt the school year and allow time for an expedited appeal to the Alaska Supreme Court. The Institute for Justice is asking for a longer stay, according to a filing from Kendall, who said the plaintiffs will oppose the longer hold on the decision. The state also plans to appeal, the governor said in a social media post.
The appeal, though, could take a while — months or years.
Correction: An earlier version of this story misidentified the author of the 2022 state legal opinion. It was Cori Mills.
Eric Stone covers state government, tracking the Alaska Legislature, state policy and its impact on all Alaskans. Reach him at estone@alaskapublic.org and follow him on X at @eriwinsto. Read more about Eric here.
