Today, the Alaska Supreme Court heard arguments in a case to determine whether public school funding, originally intended for home-schooled students, can be used to pay for tuition at private and religious schools.
Earlier this year, an Anchorage Superior Court judge found that the practice — made possible by a 2014 bill that lifted much of the oversight of home-school spending — violated the Alaska Constitution’s prohibition on public expenditures for the direct benefit of private and religious schools. The judge found the program so fatally flawed that it required him to strike down broad swaths of the state’s home-school laws.
With the ruling happening midway through this year’s legislative session, legislators ultimately passed an eleventh-hour deal to reinstate much of the home-school program. The deal directs the state to create a new home-school program with better oversight to ensure that it adheres to the Alaska Constitution. Most legislators agreed that it was inappropriate for the state to subsidize private and religious school tuition.
The bill has yet to be transferred to the governor and the Board of Education has yet start working on new regulations. School is set to begin again in mid-August.
Watch: State of Alaska, DEED v. Edward Alexander et al.
However, not everyone, including Alaska Gov. Mike Dunleavy, shares this perspective.
As a state senator, Dunleavy designed the changes to the law that lifted almost all state oversight over home-school programs administered by local school districts. He argues that it’s not the state’s responsibility to oversee the programs, that the program was working as intended and that the families, not the schools, receive the benefits.
“School districts are independent actors, and then you look at the statute, and they are the ones that make the ultimate decision about the funding,” said Elbert Lin, a West Virginia lawyer that the state hired to take on the case. “The state can’t be held liable for violating the Constitution because they’re not the ones undertaking that action.”
Lin and the state argue that the case was improperly decided and overbroad. They’ve argued that the ruling could also prohibit any spending with private companies, potentially blocking schools from buying textbooks or contracting for buses. They also argue that the case needs to be directed at the dozens of individual school districts, none of which have taken action to intervene in the case.
While Lin spent much of his time talking about the technicalities of the case, Institute for Justice attorney Kirby West Thomas argued on behalf of families that were using the allotments to subsidize private school tuition that it was their right to do so. The Institute for Justice is a libertarian public interest law firm that has fought for public spending on private and religious schools. She called the right to attend private schools with state funding a “fundamental right” and pointed to a recent caselaw that sided with religious spending. However, in that case, as the justices pointed out, the matter was about vouchers working at private schools but not religious schools.
In this case, they noted that the Alaska Constitution bars spending on both private and religious schools.
In his time before the court, Scott Kendall, the attorney for the plaintiffs who successfully challenged the case, argued that this ruling does not hamper a person’s right to attend private and religious schools. He said, however, that it’s about where the funding goes.
“There is no federal right to a subsidized private education,” attorney Scott Kendall told the court. Kendall is representing a group of public school families who argue the allotment program’s lack of standards and oversight has allowed private and religious schools to siphon away money from the public school system. “You have the right to travel; you can ride the bus, but you can’t force the state to pay for your truck.”
Scott Kendall argued that the entire plan was designed to skirt the Alaska Constitution, as evidenced by Dunleavy’s push in 2014 to remove the prohibition on religious and private school spending from the document. That effort failed, Kendall recounted, but Dunleavy and his backers designed a plan that reached essentially the same goal.
On some of the technical questions about the lawsuit, Kendall said that he would also accept a ruling that leaves the current laws in place with the explicit direction that the home-school allotments cannot be used for private and religious school tuition.
Chief Justice Peter Maassen said they’ll take the matter under consideration and “issue something in the time ahead.”
“No timelines are guaranteed,” he said, “but we understand the urgency of the matter.”
Matt Acuña Buxton is a long-time political reporter who has written for the Fairbanks Daily News-Miner and The Midnight Sun political blog. He also authors the daily politics newsletter, The Alaska Memo, and can frequently be found live-tweeting public meetings on Twitter.