An Anchorage Superior Court judge ruled Friday that correspondence schools that reimburse parents for their children's education-related expenses are unconstitutional.
The 33-page decision could have major implications for Alaska's roughly 20,000 distance school students and the state's broader public education system.
The correspondence program allows students across Alaska to receive home learning under the authority of their local school district. For the past decade, state law has allowed families to receive thousands of dollars a year in publicly funded reimbursements for education-related expenses.
A lawsuit filed last year alleges that four Alaska parents and teachers used these quotas to “purchase nonsectarian services and materials from the public, private, or religious organizations for which student quotas are provided.” They objected to the law allowing them to do so.
The plaintiffs argued that the law violates the state constitution because it is “used to reimburse parents thousands of dollars for services provided by private educational institutions.”
Anchorage Superior Court Judge Adolph Zeman agreed, ruling that the statute based on the communications quota was “unconstitutional on its face” and “should be struck down as unconstitutional in its entirety.” .
Deputy Attorney General Cori Mills called the decision “very concerning.”
Lawmakers who considered the decision said additional action was needed to clarify the future of the communications program, but there was plenty of time to act as Congress enters the final month of its scheduled session. I questioned whether it was true.
“It's pretty late in the session,” said Sen. Bill Wilechowski, an Anchorage Democrat. “This is a major decision with major policy implications.”
“Shadow Voucher Program”
The provision, ruled unconstitutional, stems from a bill introduced in 2013 by then-Republican state senator Mike Dunleavy. This law was finally enacted in 2014.
Under the Alaska Constitution, public funds cannot be disbursed “for the direct benefit of a religious or other private educational institution.”
When Dunleavy first proposed the bill in 2013, he introduced a companion constitutional amendment that would remove restrictions on the use of public funds for religious or private educational institutions. The amendment was never adopted by Congress or presented to voters.
The judge found that the statute authorizing correspondence school assignments was “drafted with the express purpose of permitting the purchase of private educational services with public correspondence student assignments.”
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Read the full judgment:
Under the judge's ruling, a statute enacted in 2014 will be completely invalidated and will affect whether correspondence students will be able to continue using the slots allocated to them for the current academic year, much less for future years of the program. Needless to say, their fate became uncertain.
“If Congress believes these expenditures are necessary, it is up to Congress to enact constitutional legislation to serve that purpose,” the judge said.
Scott Kendall, an attorney representing the plaintiffs in the case, said Friday that the judge “correctly held that (the statute) cannot be narrowed.”
“The problem was that there was widespread abuse of the system, so it essentially functioned as a shadow voucher program,” Kendall said.
Kendall said some private schools are directing families to use correspondence school allotments to help cover tuition costs. Jodi Taylor, wife of Attorney General Treg Taylor, wrote in 2022 about a plan to use correspondence school allocations to pay for children's education at private Catholic schools.
Parents who benefit from the quotas intervened in the lawsuit, arguing that without the program they would not be able to afford to send their children to private schools.
“This was essentially a growing cancer on public school funding,” Kendall said. A few years ago, “it became clear that millions and tens of millions of public school funds were going directly to private schools,” he added.
“Important decision”
The state argued that the program was not unconstitutional because the quotas were “applicable to the fullest extent possible” without violating the Constitution. The judge denied the state's request to dismiss the case.
Mr. Mills, the Justice Department official, said in a statement Friday night that the department is “beginning to review” the decision.
“This is a public school program for public school children. This could result in Alaskan families being deprived of important public education opportunities. We are considering our next options.” Mr. Mills said.
In 2022, Mills wrote an opinion arguing that it is legal in some cases to use correspondence school quotas for private school instruction.
Kendall said he hopes Congress will act quickly to ensure the continuation of the communications program while prohibiting families from spending money on private or religious organizations.
“It's probably not that difficult to solve this problem,” Kendall said.
But in interviews Friday, lawmakers suggested the solution may not be that simple.
Sen. Loki Tobin, an Anchorage Democrat who chairs the Senate Education Committee, said Congress “needs to spend time and energy reconsidering how to structure an apportionment program that falls within constitutional requirements.” “There is,” he said.
“I don't think the legislators have the ability to accomplish that over the next four weeks,” Tobin said. Parliament is scheduled to adjourn in mid-May.
Rep. Justin Loughridge, R-Soldotna, co-chair of the House Education Committee, said lawmakers “need to work to resolve this issue as quickly as possible.”
“Families and students receiving distance learning, as well as students attending neighborhood schools, need stability and clarity about the upcoming school year,” he said in a written statement.
If the state chooses to appeal the decision to the Alaska Supreme Court, the Legislature's hands could be tied, Wirechowski said. The state could also request that the decision be put on hold, meaning it would not take effect immediately.
“Congress typically doesn't get involved when litigation is ongoing,” he said.
Tobin said the decision may prompt some parents who previously sent their children to distance learning programs to consider transferring to a brick-and-mortar school.
“We are unprepared for the influx of students leaving distance learning into public schools, especially with the current education funding crisis that schools are facing,” she said.
The decision comes as lawmakers have spent much of the session passing education funding legislation. Lawmakers approved a bill that would increase funding for public schools by about $175 million annually. Dunleavy said he opposes any legislation that does not create new ways to approve charter schools, which he vetoed. An attempt to override the veto failed by one vote. A new education package is being considered in the Alaska House, including the charter school provision sought by Dunleavy.
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