There’s plenty of debate about what the Alaska Constitution’s “establish and maintain” clause means for the state’s public school system, but it’s crystal clear on one thing: “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.”
Yet, Alaska has been allowing just that to happen, with families using direct cash payments from local school districts to enroll students in private and religious schools. The practice was the result of a sneaky change to state law pushed by Gov. Mike Dunleavy as a state senator in 2014, which directly gave home-school families cash to buy non-religious materials from religious and private organizations.
The practice has quietly taken hold with Anchorage’s biggest K-12 private school, Mountain City Christian Academy, automatically enrolling students in the home-school program run by the Denali Borough in order to receive $3,000 reimbursements from the public coffers.
Last week, Anchorage Superior Court Judge Adolf Zeman ruled that the practice was not only unconstitutional but also so flawed that the entire cash payment system has been struck down, creating unknown impacts for more than 20,000 students in home-school programs statewide.
The ruling is the result of a lawsuit brought last year by the parents of school-aged children attending public schools, who argue that the program violated the Alaska Constitution. Both the State of Alaska and families using the allotments to subsidize their tuition at a private school argued that it didn’t violate the Alaska Constitution because families, not the state, made the decision to spend the public money on private and religious uses.
Under the 2014-era law, families can receive direct cash payments from the districts to spend on their home-schooling. The law was pitched to help families buy supplies and take supplemental electives, but it has been used instead to supplement tuition so these students can attend private and religious schools with the public school system picking up part of the tab. The lawsuit notes that the constitutional issues were known at the time but that Sen. Dunleavy conveniently didn’t mention them in the final stages of the legislation.
The practice started to make headlines in 2022 when the Alaska Beacon reported that several state-licensed home-school programs were explicitly allowing families to use the allocations for private school tuition, with some even writing out advice on how to do it. That included writings by Jodi Tayor, the spouse of Attorney General Treg Tayor, on how to take advantage of the program. Two months after that, Deputy Attorney General Cori Mills published a legal opinion that the program favored by the Taylors didn’t violate the Alaska constitution as long as it didn’t pay for most of the private school tuition.
The lawsuit paints a clear picture of just how widespread the practice has become, noting that it wasn’t exactly a minimal monetary benefit to the religious organizations. Judge Zeman’s order explains that the family who was using the money as private school tuition would have, if they had maximally utilized the funding over the course of their six children’s education, spent more than $350,000 in public education dollars on private and religious materials.
“This is by no means a ‘trivial’ amount of money,” Judge Zeman wrote.
The family appealed to the court, arguing that they would be put in a tough financial position if they were to lose the ability to spend the public allotments on private and religious education. Judge Zeman had little sympathy.
“In fact, the intervenors explicitly acknowledge that they are using public funds to finance their children’s private educations,” he wrote. “They note that without the allotment money, they could not send their children to private school or that doing so would create a significant financial burden. Parents have the right to determine how their children are educated. However, the framers of our constitution and the subsequent case law clearly indicate that public funds are not to be spent on private education.”
The course ahead isn’t clear.
Judge Zeman said it’s not the court’s job to fix the program.
“If the legislature believes these expenditures are necessary — then it is up to them to craft constitutional legislation to serve that purpose — that is not the court’s role,” he said.
While there are many home-school supporters in the Legislature, the scope and depth of the scheme to funnel public dollars into unconstitutional purposes is likely to give some legislators pause and encourage others who have long been quietly skeptical of the program. Pro-public school legislators have argued that increased oversight is needed on home-school and charter programs, pointing to high opt-out rates in standardized testing and other incomplete data about how that money is spent.
The Republican-led House Education Committee soundly rejected several amendments seeking to enact increased reporting requirements when taking amendments to the House Republicans’ education bill last week.
The case is expected to be appealed to the Alaska Supreme Court, which could put Judge Zeman’s ruling on hold pending that outcome, potentially allowing families to close out the school year under the current rules.
Scott Kendall, the attorney who represented the families suing the state, described the program as a “shadow school voucher program.” Gov. Dunleavy and his allies have all long pushed for changes to the Alaska Constitution that would strike the prohibition on sending public dollars to private and religious schools but have never been able to muster the supermajority of votes needed to advance a constitutional amendment.
The timing comes as education funding and policy are in the spotlight. Gov. Dunleavy and his Republicans successfully killed a bipartisan education bill last month, which would have increased public school funding and provided a minor bump to the home-school allotments. They argued that it needed to be attached to changes that would have given the Dunleavy administration carte blanche with charter school programs.
House Republicans are in the process of a second education bill that would have provided an even larger boost to the home-school allotments, amounting to a roughly $45 million increase, as well as the controversial charter school expansion.
That pitch has also been criticized as another backdoor attempt to institute the governor’s voucher program. His administration has refused to explain precisely what it plans to do with the expanded powers, but it’s created concerns that the state would approve a religious operator for a new charter program. In an open letter earlier this month, Association of Alaska School Boards Executive Director Lon Garrison outlined these concerns.
“It is the first and most significant step in a plan to reduce the power of local authorities and provide opportunities for private and religious schools to access public funds,” he wrote.
