Justices grill attorneys as correspondence school case reaches Alaska Supreme Court

A high-stakes battle over a popular form of homeschooling reached the Alaska Supreme Court Thursday, as the justices grilled attorneys representing the state, public school families and a group of parents who use state funding to send their children to private schools.

The justices are considering an appeal of a lower court decision that invalidated two 2014 laws key to the correspondence school system as it exists today. The laws relaxed state regulations on how correspondence school learning plans are constructed and how cash payments to families, known as allotments, can be spent. That allowed some families to use their allotments on private school classes.

In April, Anchorage Superior Court Judge Adolf Zeman ruled that the 2014 reforms violate the Alaska Constitution, which bars the use of public funds “for the direct benefit of any religious or other private educational institution.”

In front of the Alaska Supreme Court, Institute for Justice attorney Kirby Thomas West argued in support of the 2014 laws. She said the lower court decision had clouded the future for a significant fraction of Alaska’s students.

“The reality of the superior court’s decision in this case is that 22,000 families, families like Andrea Moceri and her son Gio, have been thrown out of a program on which they relied for their children’s education, just because that program included the option to use private school.” West said.

West represents a group of families who use their allotments on private school tuition who intervened in the case to defend the system as it currently exists. She argued that limiting the use of state funds on religious schools violates fundamental rights guaranteed by the U.S. Constitution.

“And where a fundamental federal right exists, the state is not only barred from flatly prohibiting the exercise of that right, the state also may not condition the receipt of a benefit on foregoing the exercise of that right,” West said.

But Justice Dario Borghesan appeared skeptical.

“Because of the Free Exercise clause [of the First Amendment], the court has looked and said you can’t deny a benefit to an entity based solely on its religious status. That’s discrimination against … religion or religious practice. The court has never said anything similar in the context of a parental right to send their kid to private school,” Borghesan said.

Attorney Scott Kendall, representing families of public school students who objected to the correspondence laws, asked the court to affirm the lower court ruling — or at least narrow the correspondence school statutes to prevent spending on private schools. Kendall asked the justices to consider the purpose of the law.

“The legislation’s prime sponsor said, right now, if I want a kid to take a Latin class at Monroe Catholic, he can’t, because of our Constitution. It was clear they were changing the status quo, and it was clear that there was a fairly broad awareness of exactly what they were doing, and large concerns that it was unconstitutional at the time.”

Kendall was paraphrasing Gov. Mike Dunleavy, who proposed the homeschool reforms while in the Alaska Senate.

But the justices seemed hesitant to side with the lower court and declare the 2014 reforms unconstitutional, saying a challenge to the specific use of correspondence school funding on private school tuition might be more appropriate.

“I mean, you can go to court and you can say, ‘Anchorage School District is spending money in this unconstitutional way. That’s unconstitutional.’ And a court can say, ‘Yes, it is unconstitutional to spend that money, or it’s not,'” Borghesan said. “But then, you know, you have an as-applied, a ruling, and you don’t have to throw out the whole statute.”

Former West Virginia Solicitor General Elbert Lin represented the state. He told the justices the lower court’s ruling had gone too far. He argued that there was a wide range of permissible spending under the allotment law — including purchases at retailers like Target or Amazon — and that the court should allow the law to stand.

“As this court has consistently held, that courts must respect a statute’s constitutional applications, and not simply throw out the good with the possibly bad,” Lin said.

And even if the court agreed with the plaintiffs that private school spending should be barred, Lin argued that school districts were the appropriate parties to sue, since the 2014 law limits the state education department’s oversight of allotment spending.

“They [the Department of Education and Early Development] don’t have a role to play in the approval or disapproval reimbursements for the allotment spending,” Lin said. “They can’t direct the districts as part of that process to either approve or disapprove a particular reimbursement.”

Lin argued that the state had the ability to enforce constitutional limits on how allotments are spent by suing school districts. But he said courts could not compel the state to do so.

Given the accelerated schedule of the Alaska Supreme Court appeal, the court could rule quickly, issuing what’s known as a “summary opinion” stating their position and leaving the reasoning behind the decision for a later date. Chief Justice Peter Maassen did not offer a timeline, but said the court “understood the urgency of the matter.”

Unless the Supreme Court acts sooner, the lower court’s ruling invalidating the homeschool statutes takes effect July 1. 

A bill that would offer a one-year fix to the correspondence school statutes is awaiting transmission to the governor after passing the Legislature in the final hours of this year’s session. The replacement legislation is very similar to the current system, with one key difference: it would require the state school board to ensure allotment spending doesn’t violate the Constitution.