Alaska board of education waits to take up correspondence school regulations until after Supreme Court hearing

On the final day of Alaska’s legislative session, lawmakers passed a bill instructing the state board of education to adopt regulations governing correspondence programs. The vote came after a Superior Court Judge found correspondence programs — which allow the families of homeschooled children to receive state funding — were in violation of the state constitution.

But three weeks after the final vote on the bill, it has yet to be transmitted to Gov. Mike Dunleavy for a signature. And when the board of education met Wednesday in Kotzebue, it did not consider regulations related to the programs.

The legal dispute over Alaska’s correspondence programs is set to be heard by the Alaska Supreme Court on June 27, and education department officials indicated they would not forward regulations to the board until the court hears the case.

The board of education voted Wednesday to hold a special meeting on July 1 in which they could discuss correspondence program regulations, Education Commission Deena Bishop said.

“We expect to really have some more direction in how to meet the mark and ensure that the regulations that we do put forward to them meet the constitutional needs,” Bishop said in a phone interview on Wednesday.

Alaska’s longstanding correspondence programs, which last year enrolled nearly 23,000 students, provide families the option of receiving up to $4,500 per student per year to cover the costs of homeschooling, including for textbooks, curriculum and other related expenses.

But under a law advanced by Dunleavy when he was a state senator a decade ago, many limitations on the use of the funds were lifted, and families — including that of Attorney General Treg Taylor — were increasingly using the allotments to cover the cost of private and religious school tuition.

After a group of parents and teachers challenged the practice in court, Superior Court Judge Adolf Zeman struck down in April two key statutes governing the program, later issuing a stay on the decision through the end of June. The Dunleavy administration appealed Zeman’s ruling, arguing that the use of the funds to pay for private school education should remain legal.

The state filed last week its briefing in the case to the Alaska Supreme Court, which was co-written by attorneys from the First Liberty Institute, a legal organization based in Texas focused on defending religious freedom.

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At a meeting of the state board of education in Kotzebue on Wednesday, Assistant Attorney General Susan Sonneborn told board members that the board could be expected to adopt emergency regulations on July 1, but proposed regulations would not be made public before the Supreme Court hearing.

“We have been reviewing with the governor’s office and have been reviewing and considering all options to ensure that correspondence programs continue smoothly without disruption, including potential new regulations. However, the exact form of regulations will need to work in conjunction with what the Alaska Supreme Court decides,” Sonneborn told board members.

Sonneborn said that once the court issues its ruling, the board could meet and immediately implement emergency regulations without taking public comment. Emergency regulations could remain in place for 120 days before the board would be required to take further action.

“It’s a shorter time frame so that you get them in place, sort of deal with the emergency, and then you would, at that point, need to go through the public comment process,” said Sonneborn.

Emergency regulations could be needed on July 1 to keep correspondence programs running smoothly.

“Guaranteed, July 1, we will have emergency regulations to the state school board,” Bishop said.

“The tricky part is that we need to know what the Alaska Supreme Court is going to say,” said Sonneborn. “It may not even be necessary to have regulations because the Supreme Court could decide to overturn the Superior Court decision, in which case we have our statutes in place already, and we wouldn’t need regulations. So it’s a little bit of a wait-and-see.”

During the final weeks of the legislative session, several lawmakers, including Senate Education Committee Chair Sen. Löki Tobin, D-Anchorage, and House Education Committee Co-Chair Rep. Justin Ruffridge, R-Soldotna, said it was important for the Legislature to adopt a bill providing the families of correspondence students certainty on the future of the programs before the end of the session.

House Bill 202 does that by instructing the state board of education to “adopt regulations establishing standards for individual learning plans.” One of the statutes struck down by Zeman eliminated the statutory framework for learning plans, which dictate how a student’s allotment funds can be used.

The bill orders the board to adopt regulations that are consistent with the Alaska Constitution, which states that “no money shall be paid from public funds for the direct benefit of any religious or other private educational institution.”

Dunleavy and members of his administration have asserted that the use of allotment funds — including to cover private schools tuition — does not violate the state constitution.

The bill also instructs the department of education to “monitor the use of allotments” distributed to students and to provide an annual report that includes “an accounting of student allotment funds that have been disbursed.” The department does not currently keep track of spending by correspondence students, making it difficult for statewide officials to know how many students use their allotments to cover the cost of private schools.

Once the bill is transmitted to Dunleavy’s office, he has several days to either sign it, veto it, or allow it to become law without his signature. Bishop said she was supportive of the legislation and had relayed that support to Dunleavy’s office.