Judge grants stay until June 30 on correspondence school ruling, says state ‘mischaracterizes’ order

JUNEAU — State laws allowing some Alaska students to use public funds at private and religious schools will remain in place through the end of June, but not after, an Anchorage Superior Court judge ordered Thursday.

Judge Adolf Zeman last month struck down two statutes governing Alaska’s correspondence programs, finding that they violated a state constitutional prohibition on spending public funds at private institutions.

The decision affects nearly 23,000 correspondence students across the state. After the decision, the plaintiffs in the case — a group of parents and teachers — asked for the decision to be paused through the end of the school year, allowing those students to complete the year with minimal interruptions.

Zeman granted that request Thursday, but denied a request from the administration of Gov. Mike Dunleavy to pause the decision for a longer period until the Alaska Supreme Court can hear the case on appeal, which could take months. Zeman wrote in Thursday’s order that the state “has not shown a likelihood of prevailing on the merits on appeal.”

Zeman took issue with Dunleavy’s expansive interpretation of the original order striking down the statutes that allowed public funds to be spent on private school tuition.

Dunleavy has said Zeman’s decision meant no public funds could be spent on any private vendor — including textbook and transportation companies. That interpretation contradicted the legal analysis of nonpartisan legislative attorneys, who said correspondence programs could continue with small statutory or regulatory changes.

Spokespeople for Dunleavy did not immediately respond to requests for comment Thursday evening.

“It’s pretty much what we’ve been saying all along,” Sen. Bill Wielechowski, an Anchorage Democrat, said Thursday of Zeman’s ruling. “The judge got the decision right constitutionally. The state was misreading what the decision said. It did not strike down the correspondence program.”

Zeman wrote Dunleavy’s administration “mischaracterizes and misreads” the court’s April decision. The judge went on to reiterate that his decision only affects two state statutes that expanded correspondence programs when they were enacted in 2014. Those statutes were originally proposed by Dunleavy in 2013, when he was a state senator.

Correspondence programs, which generally allow homeschooled students to receive public funds to pay for educational materials under the direction of certified teachers, long predated Dunleavy’s proposal. That proposal limited the guardrails that the state and districts could implement on the uses of correspondence allotments.

“This court did not find that correspondence study programs were unconstitutional,” Zeman wrote, adding that “correspondence programs continue to exist after this court’s order.”

“This court finds that a limited stay is the best solution to ensure that students, families and school districts are protected from undue disruption and all parties are protected from unnecessary uncertainty and related harms,” Zeman wrote.

Dunleavy said Wednesday — before the limited stay was granted — that he thought lawmakers should not pass legislation addressing correspondence programs until the state Supreme Court hears the case.

Lawmakers in the House and Senate have dueling proposals related to correspondence programs, but there is limited time to act before the May 15 deadline for the end of the legislative session.

Wielechowski said the limited stay “reiterates the urgency of the Legislature passing legislation” before the end of the session.

“If the court had granted a stay through next year, then it would have taken the urgency away from doing something because we could address it next session. Now that we know that this expires June 30, I think it would not be responsible for us to not pass something before we leave, or for emergency regulations to be enacted,” said Wielechowski.

The alternative to passing a bill would be for the state education department to write new regulations instructing school districts on the administration of correspondence programs. The process of writing new regulations can be long — to make time for public testimony and input — but can be expedited on an emergency basis. Education-related regulations are typically overseen by the state board of education, whose members are appointed by Dunleavy.

Wielechowski said his “preference would be that the Legislature enacts statutes that comply with the judge’s order.”

Rep. Justin Ruffridge, a Soldotna Republican who co-chairs the House Education Committee, said Thursday evening that legislation must pass by the end of the session to address correspondence programs.

“To me, the stay reinforces what my thinking was already, which is, ‘We should probably start working on this,’” said Ruffridge.

Sen. Loki Tobin, an Anchorage Democrat who chairs the Senate Education Committee, said the legislation would ultimately be “some balance between” the dueling proposals in the House and Senate, both of which are scheduled for hearings Friday.

The Senate proposal would put in statute regulations that existed prior to 2014. Those regulations included specific restrictions on how funds could be used, including a ban on using the funds for most out-of-state travel; a requirement that unspent funds be returned to the state at the end of each school year; and limits on use of the funds for gym memberships and other recreational pursuits.

The House proposal favored by Ruffridge is far less prescriptive. It would essentially task the state board of education to promulgate regulations as they see fit. That proposal is also preferred by many homeschooling families and Dean O’Dell, the director of IDEA, which is the largest correspondence program in the state. They have raised concerns over the fact that the Senate’s proposed changes would ban some common practices, including a practice by families to save up money from year to year to pay for larger purchases.

Allotment sizes range from $2,700 to $4,500 per student per year, depending on the program.

Tobin said her goal with a more detailed bill is to “provide the state board of education clear guidelines so that the regulations that they do promulgate are aligned with our constitution” and include “oversight that also must occur for effective use of public funds.”

Scott Kendall, the attorney representing the plaintiffs, said he was grateful for the limited stay that would allow students to finish the school year with minimal disruption — but would not allow unconstitutional spending to continue indefinitely.

“The very good news here is that to the extent the state thought there was an emergency — there’s no emergency,” said Kendall.