Alaska Supreme Court to hear oral arguments in challenge to correspondence programs

The Alaska Supreme Court is set to hear a high-profile case this week that could affect nearly 23,000 Alaska students enrolled in a publicly funded homeschooling program — and figure into a national debate on the future of public education funding.

The attorney making arguments on behalf of the state will be a former solicitor general of West Virginia.

An Alaska Superior Court judge ruled this year that Alaska’s correspondence programs, which provide up to $4,500 per student per year in state funds to cover the cost of homeschooling curriculum and materials, were illegally being used as what plaintiffs in the lawsuit called a “shadow voucher program” to cover tuition in private and religious schools, in violation of the Alaska Constitution.

The Alaska Constitution states that “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.”

Gov. Mike Dunleavy has sought to protect the ability of Alaskans to use public dollars to pay tuition fees at private and religious schools.

The lower-court ruling has been paused through July 1, and the state Supreme Court is expected to issue a preliminary ruling soon after hearing oral arguments in the Boney Courthouse in Anchorage on Thursday.

Arguments for the state will be made by attorney Elbert Lin of West Virginia, a state that already allows public funding to be used for private school tuition.

The state has argued that the vast majority of spending through correspondence programs is allowed under the constitution, and that the plaintiffs should have sued the school districts running correspondence programs individually, rather than the education department as a whole.

Alaska has resisted a formal voucher program as such schools have grown in prevalence and popularity across the country. Vouchers are generally supported by religious voters — who can use public education funding to pay for religious education, even if the U.S. Constitution forbids overtly religious education in public schools.

The practice was advertised and promoted by the wife of Alaska Attorney General Treg Taylor in a 2022 article she penned, describing how she used correspondence program allotments to pay for her children’s education at a private Catholic school in Anchorage.

The use of correspondence school allotments stems from a law first proposed by Dunleavy when he was a state senator a decade ago. At the time, Dunleavy advocated for amending the state constitution to explicitly allow for public funds to be spent at private schools. That constitutional change was never adopted, but language from a bill he proposed was enacted, explicitly allowing parents to pay private and religious vendors with correspondence allotment funds, and limiting the ways that the state education department could track the uses of the funds.

The Alaska Department of Law is relying on help from Outside attorneys to argue the case. The First Liberty Institute, a Christian conservative legal organization based in Texas, is representing the state free of charge. Under an agreement with the attorney general, First Liberty Institute will provide the state assistance in the case “and any subsequent appeals,” hinting at a possible appeal to federal court that Dunleavy has said he would consider pursuing if the state Supreme Court upholds the lower-court decision.

According to the agreement with the state, the First Liberty Institute expects the court case “will attract significant media attention” and the Department of Law “agrees to consult with FLI in order to develop a joint media strategy prior to communicating with any member of the media.”

Deputy Attorney General Cori Mills said in a statement that the Superior Court decision “has garnered national attention, so much so that First Liberty ... reached out to the state to offer legal assistance on a pro bono basis.”

The First Liberty Institute also represented families in a U.S. Supreme Court case known as Carson v. Makin, which centered on the use of school vouchers to pay for religious private schools. In 2022, the Supreme Court ruled that Maine’s exclusion of religious schools from their voucher program violated the U.S. Constitution.

“With the understanding that the State is firmly in the driver’s seat on what and how this case is argued, it seemed prudent to take the offer of free help from other legal experts,” Mills said in a written statement.

Additionally, the state is paying Lin, the West Virginia attorney, $100,000 for work on the case. The state originally signed a contract with Lin last year valued at $50,000, then amended the contract this month to cover up to $100,000 in services.

Lin is expected to take the lead in arguing the case in the Alaska Supreme Court next week.

Mills said the involvement of Lin and First Liberty Institute attorneys gives the state “a deep bench of high-quality lawyers.”

Scott Kendall, an Anchorage attorney representing the Alaska parents and teachers challenging the use of the correspondence allotments, said the decision to have the case handled by an Outside attorney was “bizarre.”

“I’ve never seen the state sideline their own attorneys for an outside attorney in front of a state court like this,” said Kendall.

Department of Law spokeswoman Patty Sullivan did not give a precise response when asked how common it is for the state to be represented by Outside attorneys in arguments before the Alaska Supreme Court.

“The State looks at every case and determines the resource and expertise needed and how to best staff it,” Sullivan said in response to written questions. “In this case, it was determined that having Mr. Lin take lead at this particular stage was the right choice under the circumstances. There is no bright line rule — it is simply a case by case evaluation.”