Why last week’s Alaska Supreme Court ruling isn’t the final word on homeschool allotments

The Alaska Supreme Court handed the state a victory last week when it reversed a lower court ruling that had thrown out two key homeschool laws as unconstitutional.

Gov. Mike Dunleavy celebrated the decision, saying the high court was right to keep the laws in place. 

But there’s a key question the court didn’t address: whether Alaska correspondence schools can allow parents to spend public money at private schools.

Alaska Public Media’s Eric Stone explains what the court’s decision means and what’s ahead.

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This interview has been lightly edited for length and clarity.

Casey Grove: Homeschool advocates are celebrating this ruling. But why are the people who challenged the homeschool laws still optimistic?

Eric Stone: The short answer is, the court didn’t say one way or the other whether private school spending was constitutional. It totally sidestepped the question. So the decision upholding the homeschool laws was, as the plaintiffs see it, a procedural one. Here’s their lawyer, Scott Kendall.

“The heart of that procedural concern is there’s not a school district at the table for the litigation,” Kendall said Friday.

Back when they first filed this lawsuit, the plaintiffs’ main objection was that people were spending state money on private schools in violation of article 7 of the Alaska Constitution. That basically says you can’t spend public money on religious or private schools. That was their main gripe with the current system.

Now, they didn’t limit their objections to private school spending. They also argued that the whole law was unconstitutional. And at the superior court level, the trial court in this case, agreed with them and threw out the whole law. That’s how we wound up with all this uncertainty around the future of homeschooling.

But what the Alaska Supreme Court did was rule that throwing out the whole law was inappropriate. There is a very high bar for throwing out a whole law as unconstitutional. And in this case, the Alaska Supreme Court found that the plaintiffs hadn’t met it. The state was successfully able to argue that there are plenty of legitimate uses for homeschool allotments, and that’s enough to make the law constitutional.

And what the Alaska Supreme Court said was, basically, you can challenge how allotments are used, but you have to sue the right party.

CG: Why do they have to sue school districts?

ES: So the 2014 law that changed homeschooling in Alaska and created the system we have now, what it did was devolve a bunch of power that was previously held by the state and hand it to school districts and parents. At the time, then-Sen. Mike Dunleavy said the approach was to care less about how the kids actually learn and more about outcomes, like how the kids perform on tests or their schoolwork. Here’s how Dunleavy put it in 2013.

“The parent, the school district and the ILP teacher determine what the inputs are to get to that output, as opposed to the Department of Education through its regulations determining the inputs. The local school determines the inputs, the local district determines the inputs,” Dunleavy said at a March 2013 hearing.

(Of course, a couple years later, another bill cosponsored by Dunleavy allowed parents to opt out of state testing, which in some sense is how you measure output. But that’s all a bit beside the point. The point is, who’s responsible for what kids learn, and from whom, that’s the responsibility of local school districts.)

And the way that manifests is, parents work together with their correspondence school to develop an individual learning plan, that’s the ILP Dunleavy mentioned. Then, they buy classes and curriculum and so on from district-approved vendors, which in some cases include private schools. But at the end of the day, it’s districts that are responsible for ensuring that spending abides by the state Constitution. 

But the lawsuit was against the state. So the Supreme Court ruled that in order to answer that question, whether private school allotment spending is OK, you’ve got to add a school district so you have someone to argue against. Courts don’t like to rule without hearing from both sides, so they sent it back down to the lower court.

CG: So where do things go from here?

ES: Well, when I spoke to the plaintiff’s lawyer, Scott Kendall, shortly after the decision was released on Friday, he said the path ahead was clear.

“In a sense, what they say in this order is, all we need is an example of this happening one time. Bring the school district who did it in front of us, and we can tell you that this is unconstitutional,” Kendall said.

It’s a little too early to say whether that’ll definitely happen — Kendall’s clients could decide not to take it any further. But if they do, that’s how it’ll likely play out. 

One big unanswered question here is what role the state will play as this case continues, assuming it does. I asked Cori Mills, the head of the Department of Law’s Civil Division, whether the state would step in to defend private school spending, now that it’s been dismissed from the case. She told me it’s a bit too early to say.

“I think we’d have to evaluate the specific case, the type of spending and determine where we fell on it and what we felt the state’s interest was in that case,” Mills said Friday.

But there are indications that the state is willing to take some steps to allow this kind of spending.

CG: What do you mean?

ES: There was this thing the state’s lawyer, Elbert Lin, said at the Supreme Court that intrigued me. And that’s basically that it’s not entirely clear that private school spending with allotment dollars is allowed under the existing laws. 

“It’s just sort of been assumed that it is consistent with the statute. But as we have reserved in our briefs, that’s a question that needs to be determined on the facts,” Lin said at Thursday’s oral arguments.

And he was basically saying it to argue that the case isn’t fully baked, that there are unanswered questions that need to be answered before you can get to the constitutionality of the law.

But why might it not be legal? One of the justices brought up the definition of correspondence study in Alaska regulation. And the Alaska Administrative Code says a correspondence program provides less than three hours per week of face-to-face instruction, at least in upper grades. And obviously if you’re full-time in a private school and using your allotment to subsidize that, you’re getting a lot more than three hours a week face-to-face. 

But at a state school board meeting after the Supreme Court decision, Education Commissioner Deena Bishop told the board she anticipated revising that definition in the not-too-distant future.

“We’re just trying to update that in the definition of specifically what correspondence is … which is just a more flexible program, rather than tied to a certain amount of time during a day with a certified teacher or not,” Bishop said at Monday’s meeting. “We’re looking at updating that to be truly reflect how it’s being used in Alaska.”

So even if the state doesn’t jump in to defend allotment spending on private schools, it’s still taking steps to make sure that’s legal under the court’s ruling, which seems significant.