Alaska Supreme Court hears arguments in correspondence school case

The Alaska Supreme Court on Thursday heard oral arguments in a case that could determine the fate of the state’s publicly funded homeschooling programs that serve more than 22,000 K-12 students.

The state’s highest court is considering an appeal of a decision by an Anchorage Superior Court judge who earlier this year overturned two state statutes governing Alaska’s correspondence programs. The statutes, first proposed by Republican Gov. Mike Dunleavy when he was a state senator over a decade ago, were found to violate a state constitutional prohibition on paying public funds “for the direct benefit of any religious or other private educational institution.”

Alaska’s correspondence programs have long allowed families to receive public funds to cover expenses associated with homeschooling, including curriculum and materials. In the 2023-24 school year, families could receive up to $4,500 per student. But under the law originally proposed by Dunleavy, the correspondence allotments were increasingly used to cover the cost of tuition at brick-and-mortar private schools, in what the plaintiffs in the case called a “shadow voucher program.”

A group of parents and teachers sued the Alaska education department over the practice last year. Shortly after Superior Court Judge Adolf Zeman ruled in their favor in April, Dunleavy said the state would appeal to the Alaska Supreme Court, and possibly take the case to federal courts.

Dunleavy and Alaska Attorney General Treg Taylor said Zeman’s decision could have unforeseen impacts on the state’s entire public education system, including by limiting schools’ ability to make purchases from private vendors. A later Zeman order stated that the decision applied only to state spending that went to private school tuition.

But the state’s argument before the justices Thursday did not focus on whether Alaska students could use public funds at private schools. Rather, the state made a legal argument focused on the difference between a “facial” and “as-applied” challenge. Elbert Lin, an outside attorney contracted by the state for the case, argued that the lawsuit should have been brought against individual school districts that allowed the allotments to be used at private schools, rather than against the Alaska education department as a whole.

Lin said that with as-applied challenges, “the court can act with a scalpel, rather than a sledgehammer.”

The state argued that even if some districts allowed students to use correspondence allotments at private schools in a way that violated the state constitution, the court should not throw out the entire statutes governing correspondence programs. Moreover, Lin argued that there wasn’t sufficient evidence before the court to back the claim that correspondence allotments were widely used to cover private school tuition, and that the evidence could only be gathered through a lawsuit that named specific school districts as defendants.

But on Thursday, the court also heard arguments from a group of Anchorage parents who said they used correspondence allotments to cover private school tuition, and asked the court to allow them to continue doing so as intervenors in the case.

The parents — Andrea Moceri, Theresa Brooks and Brandy Pennington — used the allotments to send their children to Christian private schools in Anchorage. They are represented by former Alaska Attorney General Craig Richards and attorneys from the Institute for Justice, a right-leaning public interest law firm based in Washington, D.C.

The intervenors, like the plaintiffs, asked the court to rule on the question of whether allotments could be used to cover the cost of private school, rather than the more technical legal argument brought by the state.

Scott Kendall, the attorney for the plaintiffs, compared the existing statute to a hypothetical law allowing a school district to “segregate students by age, race, or any other reason.”

“You cannot segregate kids by race. We would not be forced to go sue individual school districts to prove that they segregated children by race,” said Kendall. “When a statute grants a plainly unconstitutional power, as it does in this case … then it’s clearly unconstitutional on its face.”

Asked by Justice Dario Borghesan whether the state had a position on the substantive question of whether it was constitutional to use allotments for private school tuition, Lin said that it “depends on the facts,” including whether the spending was allowed by a student’s individual learning plan, which is required under the statute. The court could decide the case without considering that question, said Lin.

Lin said the state stands by an opinion by Assistant Attorney General Cori Mills in 2022 that stated correspondence allotments could be used to cover some private school classes but could not be used to cover full tuition at a private school.

The school districts “are the ones who make the decisions about funding, so the state can’t be held liable for violating the constitution, because they’re not the ones who are undertaking that action,” said Lin.

Kirby Thomas West, an attorney representing the intervening parents, argued that the U.S. Constitution protects the right of families to send their children to private school, and that the state should not prevent families from using homeschooling allotments to cover the cost of private school tuition.

West drew parallels between the court case and previous cases in which the U.S. Supreme Court has ruled that if a state allows parents to spend public funds on private schools, it cannot bar families from using those funds at religious institutions. But the justices seemed skeptical of the argument, noting that Alaska’s constitution prohibits all private school funding — whether religious or not — and that correspondence programs are a category of public education, rather than an avenue of public funding for private school.

“A regular person’s understanding of correspondence study, whether by mail or by remote communication, does not encompass sitting in a classroom all day at a single school,” said Borghesan. “I think both text and legislative history suggest that correspondence study is not enrollment in private school full-time.”

At the time when the legislation was proposed, Dunleavy introduced a constitutional amendment to explicitly allow directing public funds to private schools. That amendment never passed.

After the oral arguments concluded, Senior Assistant Attorney General Margaret Paton-Walsh said she thought “the justices understand the constitutional doctrine question that’s at the core of this case.”

She said the state disagrees with the intervening parents on the matter of using correspondence school allotments.

“We think what they are doing is probably not consistent with the statute,” said Paton-Walsh.

Attorney General Taylor himself has used correspondence allotments to send his kids to private religious schools full-time in Anchorage, according to an article written by his wife, Jodi Taylor.

Kendall, the attorney representing the plaintiffs, said in an interview that he was struck by the state’s unwillingness to argue on the question of whether the spending on private school tuition is constitutional.

“Both we, the plaintiffs and the intervenors, want the answer — is this spending unconstitutional or not? And the state overtly said, ‘We don’t want you to answer that question,’ ” said Kendall.

Earlier this year, the lower court ordered the implementation of the decision in the case to be paused through the end of June to prevent disruptions in the recent school year. That stay is set to expire Sunday. The Alaska Supreme Court could issue a preliminary decision by then, though the justices made no commitments on Thursday.

“No timelines are guaranteed but we understand the urgency of the matter,” said Chief Justice Peter Maassen.

The array of arguments made by attorneys Thursday left the justices with several options: They could uphold the lower court decision, uphold only part of the decision, or find in favor of the state — and send the case back to the lower court for an as-applied challenge. But without action by Sunday, districts will be required to follow the lower court’s ruling prohibiting the use of allotments for private school tuition reimbursement.

The Alaska Legislature last month passed a bill that would provide a temporary solution for correspondence students as the legal battle is underway, by instructing the state board of education to adopt temporary regulations replacing those invalidated by the lower court decision. That bill has yet to be transmitted to Dunleavy. The board of education is set to meet on Monday.