Judge rules Alaska correspondence school reimbursements unconstitutional

An Anchorage Superior Court judge ruled Friday that correspondence schools that reimburse parents and guardians for their children’s education-related expenses are unconstitutional.

The 33-page decision could potentially have major implications for the nearly 20,000 correspondence school students in Alaska and the state’s public education system more broadly.

Correspondence programs allow students across Alaska to be home-schooled under the authority of local school districts. For the past decade, state law has allowed families to receive thousands of dollars per year in reimbursements — paid for with public money — for education-related expenses.

In a lawsuit filed last year, four Alaska parents and teachers challenged the statute enabling those allotments to be used to “purchase nonsectarian services and materials from a public, private, or religious organization with a student allotment provided.”

The plaintiffs argued that the statute “is being used to reimburse parents for thousands of dollars in private educational institution services” in violation of the state constitution.

Anchorage Superior Court Judge Adolf Zeman agreed, calling the statutes underpinning the correspondence allotments “facially unconstitutional” and determining they “must be struck down as unconstitutional in their entirety.”

Deputy Attorney General Cori Mills called the decision “very concerning.”

Lawmakers who had reviewed the decision said it created the need for additional action to provide clarity on the future of correspondence programs, but questioned whether the Legislature — now in the final month of its planned session — had enough time to act.

“It’s pretty late in the session,” said Sen. Bill Wielechowski, an Anchorage Democrat. “This is a major decision with huge policy implications.”

‘A shadow voucher program’

The provision ruled unconstitutional stems from a measure introduced in 2013 by Gov. Mike Dunleavy, then a Republican serving in the state Senate. The legislation was ultimately enacted in 2014.

Under the Alaska Constitution, public funds cannot be paid “for the direct benefit of any religious or other private educational institution.”

When Dunleavy first proposed the 2013 bill, he introduced an accompanying constitutional amendment to remove limitations on the use of public funds for religious or private education institutions. That amendment was never adopted by the Legislature or placed before voters.

The judge found that the statutes allowing for correspondence school allotments “were drafted with the express purpose of allowing purchases of private educational services with the public correspondence student allotments.”

[Read the full ruling:]

Under the judge’s ruling, the statutes enacted in 2014 were completely voided — making it unclear whether correspondence students can continue using their allotments in the current school year, let alone the fate of their programs in the coming years.

“If the legislature believes these expenditures are necessary — then it is up to them to craft constitutional legislation to serve that purpose,” the judge wrote.

Attorney Scott Kendall, who represents the plaintiffs in the case, said Friday that the judge “correctly determined that (the statute) can’t be narrowed.”

“The problem was, there was such a broad abuse of the system that this was essentially acting as a shadow voucher program,” said Kendall.

Kendall said some private schools had been instructing families on using correspondence school allotments to cover tuition costs. Attorney General Treg Taylor’s wife, Jodi Taylor, wrote in 2022 about her plan to use correspondence school allotments to pay for her children’s education at a private Catholic school.

Parents who benefit from the allotment intervened in the case, arguing that without the program, they would be financially unable to send their children to private schools.

“It was essentially a growing cancer on the public school funding,” said Kendall. Several years ago, “it became clear that millions and tens of millions of public school dollars were just going directly to private schools,” he added.

‘A major decision’

The state argued that the program is not unconstitutional because the allotments “are capable of a range of possible applications” that do not violate the constitution. The judge did not grant the state’s request for the case to be dismissed.

Mills, with the Department of Law, said in a statement Friday evening that the Department of Law is “beginning to review” the decision.

“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.

Mills in 2022 authored an opinion stating it’s sometimes legal to use correspondence school allotments for private school classes.

Kendall said he hopes the Legislature acts quickly to ensure that correspondence programs can continue to operate, while prohibiting families from using funds to go toward private or religious organizations.

“It’s probably not that hard to solve this problem,” Kendall said.

But in interviews Friday, lawmakers indicated the solution could be far from simple.

Sen. Löki Tobin, an Anchorage Democrat who chairs the Senate Education Committee, said the Legislature would “need to spend time and energy reevaluating how to construct an allotment program that stays within the bookends of our constitutional requirements.”

“I just don’t see the bandwidth of legislators being able to accomplish that in the next four weeks,” said Tobin. The legislative session is expected to end in mid-May.

Rep. Justin Ruffridge, a Soldotna Republican who co-chairs the House Education Committee, said lawmakers “will need to work to solve this problem as quickly as possible.”

“Similar to our students in neighborhood schools, families and students enrolled in correspondence deserve stability and clarity about the upcoming school year,” he said in a written statement.

If the state chooses to appeal the decision to the Alaska Supreme Court, Wielechowski said the Legislature may have its hands tied. The state could also request a stay on the decision, meaning it would not take effect immediately.

“The Legislature does not typically get involved when there is ongoing litigation,” he said.

Tobin said that because of the decision, some parents who previously enrolled their children in correspondence programs may seek to switch to traditional brick-and-mortar schools.

“We are not prepared for an influx of students exiting correspondence into our public schools, particularly with the current education financial crisis our schools are experiencing,” she said.

The decision comes as lawmakers have spent much of the session trying to pass an education funding bill. Lawmakers approved a bill to increase public school funding by around $175 million annually. Dunleavy vetoed the measure, saying he objected to enacting a bill that did not create a new method for approving charter schools. An attempt to override the veto failed by one vote.

A new education package — which includes the charter school provisions sought by Dunleavy — is under consideration in the Alaska House.