Alaska Supreme Court rules in favor of Dunleavy administration on homeschool case

The Alaska Supreme Court on Friday overturned a lower court decision that found two statutes governing Alaska’s publicly funded homeschooling programs violated the state constitution by sending public funds to private schools.

The ruling is a victory for Gov. Mike Dunleavy, who has sought to defend the statutes and keep them on the books. But it is largely procedural, and the attorney who originally challenged the constitutionality of the statutes vowed to continue fighting the practice of spending correspondence school allotments on private school tuition.

More than 22,000 Alaska students are enrolled in correspondence programs, which allow families to be reimbursed for costs totaling up to $4,500 per student per year related to homeschooling materials and curriculum. But under statutes first proposed more than a decade ago by Dunleavy when he was a state senator, the allotments were increasingly being used to cover the cost of private school tuition.

Anchorage Superior Court Judge Adolf Zeman in April found that that practice violated the Alaska Constitution, which prohibits spending public funds “for the direct benefit of any religious or other private educational institution.”

One day after hearing oral arguments in the case, the Alaska Supreme Court overturned Zeman’s ruling, siding with attorneys for the state who argued the case was incorrectly brought against the Alaska education department, rather than specific school districts that had allowed correspondence funding to flow to private schools.

The justices declined to rule on the question of whether spending allotment funds at private schools is constitutional. They found that because school districts — rather than the state — design correspondence students’ learning plans and approve allotment uses, the lawsuit should have included a specific school district as a defendant.

In a written statement Friday evening, Dunleavy said that correspondence programs “can continue in their entirety” under the ruling.

The original case was brought against the state last year by a group of parents represented by Anchorage attorney Scott Kendall. Kendall said Friday that he planned to speak with his clients about pursuing a lawsuit that included a district, with the aim of providing a definitive answer on whether allotments could be used to cover the cost of private school tuition.

Kendall called the Alaska Supreme Court decision “primarily a procedural order” and said the questioning by justices during oral arguments on Thursday “strongly implies” that they would find the practice of spending allotment funds on private school tuition unconstitutional.

Kendall said that “there is more than one school district that has essentially publicly advertised the use of allotments for tuition as a service they provide. So there will be multiple potential targets to choose from.”

Denali Borough School District, for example, at one point stated on its website that a majority of the roughly 700 students enrolled in its correspondence program, called PEAK, “were dual enrolled with one of the many private schools in Anchorage.”

Alaska Attorney General Treg Taylor called the court order “a win for the rule of law.”

“To strike down the entire statutory scheme on the allegations of one type of unconstitutional spending does not comport with the laws of statutory and constitutional interpretation. Statutes are presumed constitutional and there must be a high bar to strike them down,” Taylor said in a prepared statement.

Taylor’s wife, Jodi Taylor, has openly advocated for the use of allotments to cover private school tuition, and has said she did so for her own children.

The state has entered into agreements with outside counsel to provide assistance on the case and future appeals, including attorney Elbert Lin, a former solicitor general of West Virginia, and the Texas-based First Liberty Institute, which takes on cases related to religious liberties.

The Alaska Supreme Court’s order means that if the original plaintiffs in the case choose to pursue a lawsuit targeting a specific school district, it will be considered first by the Superior Court. Kendall said that would extend the time until Alaska families have a clear answer on the permissible uses of correspondence allotments, but that the courts would likely eventually decide on the question.

“I would be surprised if we don’t have a definitive answer before this time next year,” Kendall said.

In the meantime, school districts could continue approving correspondence allotment spending on private schools as they have done in the past, but Kendall said that the court had not condoned such an action.

“There is zero in this decision that remotely approves of the practice of spending allotment money at private schools,” Kendall said.