As Alaska high court preps for correspondence school arguments, here’s what each side says

The seal of the state of alaska as seen from below
The seal of the state of Alaska hangs on April 19, 2018, behind the dais where Alaska Supreme Court justices normally hear cases in the Boney Courthouse in Anchorage. (Jeremy Hsieh/KTOO)

Homeschool students and families around the state are waiting to see what the next school year will look like after a court ruling in April clouded the future. 

The Alaska Supreme Court will hear the case later this month, but the issues are starting to take shape now as the state and the plaintiffs submit briefs outlining their arguments.

But first, a reminder of what this case is all about — one sentence in the Alaska Constitution. The final sentence of Article 8, Section 1: “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.”

Anchorage Superior Court Judge Adolf Zeman found that two statutes underpinning the homeschool system as it stands today violated that provision

One outlines individual learning plans for homeschool students — what students will learn, and how — and the other provides payments of up to $4,500 per student per year for parents to buy lessons and supplies in order to accomplish what’s laid out in the learning plan. 

Those payments are known as “allotments.” And some programs allow parents to spend their allotments on tuition at private schools.

The judge wrote that the two laws, taken together, add up to a system that can’t be fixed to comply with the Constitution. So he threw them out entirely.

The state appealed Zeman’s ruling to the Supreme Court.

Here’s what both sides are arguing so far, according to their recent briefs.

The case for the homeschool laws

The state of Alaska, in its brief to the Supreme Court, says the lower court’s ruling goes too far. Its attorneys argue that in order for a judge to throw out a whole statute, the court has to find that the core purpose of the law is unconstitutional. 

But if not — that is, if the court finds that “there is an identifiable core set of applications that are constitutionally permissible, even if there might be some applications that would not be constitutional” —  the law should survive, the state argues. 

The allotment law authorizes payments for purchases “from a public, private, or religious organization.” And while that may look similar to what’s prohibited by the Constitution, there is one key difference, the state argues: the Constitution prohibits spending on “private educational institutions,” not all private organizations.

And the state argues that there are plenty of ways to apply the homeschool statutes in line with the Constitution’s bar on spending on private and religious schools. 

“Consider just the textbooks and other supplies that students in the correspondence program need,” the state argues in its brief. “Where might those be purchased from? Perhaps the same private non-school organizations from which [the Department of Education and Early Development] obtains those supplies for its brick-and-mortar schools, every year, without any constitutional objection.” 

And thus, the state argues, the heart of the allotment law is constitutional.

The judge’s ruling also cited the legislative history of the homeschool program. When then-Sen., now-Gov. Mike Dunleavy proposed the law in 2013 to replace a system outlined in regulation, he pitched it alongside a constitutional amendment that would remove the restriction on private and religious school spending. Legislative lawyers — and Dunleavy himself — raised concerns that allowing parents to purchase curriculum from religious vendors in the absence of an amendment could violate the constitution. And no such amendment passed.

“But that history is a red herring in several respects,” the state argues. For one thing, courts make up their own minds about what is and is not constitutional. For another, the state says, the legislative record is more ambiguous than the plaintiffs claim.

And beyond that, the state argues that it’s school districts, not the state, who should be held responsible for any unconstitutional spending that happens at correspondence schools, since the homeschool laws charge school districts with monitoring allotment spending. And since the lawsuit doesn’t name school districts, it should be dismissed, the state says.

A group of parents who intervened in the case in favor of the existing homeschool laws focuses on another phrase in the constitutional language — banned are payments “for the direct benefit of” private and religious schools. 

Even allotments spent on private school tuition, they argue, can’t be considered a “direct benefit” to a private school. They argue that parents, not schools, benefit from the payments, and if parents choose to spend their allotments on a private school, that’s a choice they have a constitutional right to make. Dunleavy has made similar arguments in defense of the program.

The case against

The plaintiffs, meanwhile, say the lower court judge got it right. 

Like the state, they point to the text of the allotment law saying parents can purchase “nonsectarian services and materials from a public, private or religious organization with a student allotment.” Despite the state’s arguments that there are plenty of constitutional ways to spend the allotments, the plaintiffs say the plain text of the law — and thus the core purpose of the statute, the reason the Legislature passed it in the first place — is clearly in conflict with the Constitution.

And the plaintiffs say the legislative history is more than a red herring.  For instance, they point to Dunleavy’s statements during committee meetings that the homeschool laws would effectively remove state-level oversight of allotment spending and task individual school districts with monitoring purchases.

“The legislature broadly authorizing such purchases, and explicitly precluding DEED from imposing any restrictions to keep expenditures within constitutional bounds, is facially unconstitutional because it is in direct contravention of a constitutional prohibition,” the plaintiffs argue.

The plaintiffs also point to a May 2022 op-ed from Jodi Taylor, the wife of Alaska Attorney General Treg Taylor, as more evidence of the homeschool laws’ purpose. The opinion piece outlined how the Taylors used a $4,000-per-student allotment provided by a public correspondence program to pay about two-thirds of each child’s tuition at St. Elizabeth Ann Seton, a private Catholic elementary school.

As to whether the payments are a “direct benefit” to private schools outlawed by the Constitution, the plaintiffs point to the 1979 case Sheldon Jackson College v. State. In that case, the Alaska Supreme Court found that state-funded reimbursements of tuition at a private college in Sitka — not too different from the allotment system, the plaintiffs argue — were an unconstitutional use of public funds for the direct benefit of a private school.

The parties are due to make their cases in front of the Alaska Supreme Court in Anchorage at 10 a.m. on June 27.

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Eric Stone covers state government, tracking the Alaska Legislature, state policy and its impact on all Alaskans. Reach him at estone@alaskapublic.org.

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