State of Alaska requests pause in homeschool ruling blocking public funds at private schools

JUNEAU — The state of Alaska on Monday asked for a stay of a recent state Superior Court decision finding it is unconstitutional to use public money to pay for tuition at private and religious schools.

Attorney General Treg Taylor argued last week in an hourlong news conference that Judge Adolf Zeman’s decision was “broad” and appeared to end all Alaska homeschool and correspondence programs. Attorneys for the plaintiffs — several parents and teachers who filed the lawsuit — argue the decision was instead narrowly focused on preventing unconstitutional spending of public money at private schools.

Lawmakers, educators and parents were alarmed by Zeman’s decision when it appeared to strike down correspondence programs in their entirety. But since then, legislators like Anchorage Democratic Sen. Bill Wielechowski, an attorney, have said a narrow statutory change and new regulations could be a targeted fix.

The state on Monday asked for Zeman’s decision to be stayed until the Alaska Supreme Court has potentially weighed in and issued its own verdict, which could take months or even years. The plaintiffs already requested a stay until the end of June, which was intended to prevent disruptions in the current school year. But they indicated opposition to a longer stay because it would effectively allow unconstitutional spending at private and religious schools to continue for another school year, or even longer.

Zeman’s decision struck down two statutes as unconstitutional that were proposed by then-Sen. Mike Dunleavy and approved in 2014. The two statutes have been increasingly used by parents to pay for tuition at private and religious schools, though the extent of the practice is not fully known.

“What Judge Zeman found was that these two statutes were passed in tandem for the specific purpose of enabling unconstitutional spending,” said Scott Kendall, an attorney for the plaintiffs and a former chief of staff to former Alaska Gov. Bill Walker.

Kendall said that “part- or full-time tuition (at private schools and religious schools) was basically being paid by the state, and perversely, it was being counted as public education funding. That’s what’s insane.”

The state’s Monday court filing acknowledged that “the plaintiffs’ main concern was that student allotments are sometimes used to pay for classes or tuition at private schools, and it’s true that the statutes could be amended to prohibit such spending.” But the filing then goes on to say that Zeman’s interpretation of the constitutional term “educational institution” was so broad that “the Court’s ruling would render unconstitutional even basic purchases by brick-and-mortar public schools from private businesses like textbook publishers or equipment vendors.”

The way public correspondence programs, like IDEA Homeschool, operate was not part of the court decision and they weren’t part of the underlying case, Kendall said. He said there could be “edge cases” when a student uses correspondence funding to take one or two classes at a private school. But, he said it was incorrect to say that the judge ruled that it was unconstitutional for schools to use private vendors to buy textbooks.

“That’s an absurdly over-broad way to read it,” Kendall said.

In a Monday interview, Kendall used the example of a student using their correspondence allotment for private tutoring to help them improve in math or English.

“I don’t see any world in which that’s a problem at all. I think at the point you get to actually spending money at a private educational or religious educational school — that’s your bright line problem,” he said.

Dunleavy, who has long supported using state dollars for private and religious schools, said last week that he would likely wait until the Alaska Supreme Court issued a decision before proposing new legislation for correspondence programs. To resolve the issue, Dunleavy said that he may propose a constitutional amendment, though it would likely not be ready before the end of the legislative session in mid-May.

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.”

Wielechowski said last week that he believes the Dunleavy administration wants a constitutional amendment to remove that prohibition because “they want to allow public dollars to go to private and religious schools.”

Legislative response

Anchorage Democratic Sen. Löki Tobin said Friday that the Senate Education Committee was drafting legislation intended to provide certainty to the more than 22,000 Alaska students enrolled in correspondence programs.

“(Dunleavy) could provide stability right now and he’s choosing not to do so. And so we’re stepping up, because we have identified this as our top priority, which is adequate, stable, predictable funding for our schools — all our schools,” she said.

Tobin said the bill would give the state Board of Education guidance to write regulations to allow correspondence programs to continue operating constitutionally. She said the goal is to pass the bill before the end of the legislative session as the Dunleavy-appointed board is next scheduled to meet in June.

Before Dunleavy’s 2014 statutory change, there were stricter requirements on how correspondence dollars were used, she said, adding that the state would also have to better track the use of the allotments that families receive — which vary from $2,700 to $4,500 per student — and ensure money is not going directly to religious and private schools.

In a different tack, Republican House members last week proposed a constitutional amendment to eliminate the prohibition on state funding going to private and religious schools.

“This ballot proposal empowers voters to decide on the use of public funds for education,” said Rep. Jamie Allard, R-Eagle River, last week through a prepared statement. “This approach ensures that all Alaskans have a voice in shaping the future of education in Alaska.”

The measure is identical to a constitutional amendment proposed by Dunleavy when he was serving in the Senate in 2013. It failed to pass, but the accompanying statutory changes were approved, before being struck down as unconstitutional by Zeman earlier in the month.

Constitutional amendments need approval from two-thirds of the House and the Senate before going before Alaska voters. Multiple legislators said it was unlikely that a measure would pass the Legislature that eliminated the prohibition on public funding going to private schools.

The constitutional amendment proposed by House Republicans has been scheduled for hearings in the House Judiciary Committee on Wednesday and Friday. The Senate Education Committee’s bill is expected to be heard later in the week.