This commentary was originally published on akmemo.com.
If you saw the response of Alaska Republican Gov. Mike Dunleavy and his allies to the Alaska Supreme Court’s Friday ruling that reversed a lower court’s ruling striking down broad swaths of the state’s home-school laws, you’d think they had won a major coup in the battle over where public education dollars flow.
“This is a huge win for public education and a huge win for families,” he wrote. “The Court got it right on this one. We were confident that the statutes were always constitutional. We thank the Alaska Supreme Court for their prompt decision in favor of the state. Correspondence programs/home-school programs can continue in their entirety. This gives certainty to thousands of parents, nearly 23,000 students, and thousands of vendors for 29 school districts who help support education.”
At the heart of the case is a 2014 law authored by then-Sen. Dunleavy that lifted nearly all state oversight of publicly funded home-school programs, which some have turned into a de facto voucher program to subsidize tuition at private and religious schools in defiance of the Alaska Constitution’s prohibition of public spending on private and religious education institutions. Since the practice has come to light through this lawsuit, Dunleavy has made clear that kind of spending was the intention all along. A Superior Court judge found the practice so constitutionally flawed that it merited striking down much of Alaska’s home-school laws.
The Alaska Supreme Court disagreed.
However, the Alaska Supreme Court’s ruling doesn’t endorse the practice — far from it. Instead, it found that the Superior Court judge used a sledgehammer when a scalpel was more appropriate. Let’s break it down.
[MORE: Read the Alaska Supreme Court’s order in the Alaska homeschool lawsuit]
The state’s appeal to the Alaska Supreme Court appears to be one of the more clever legal approaches out of the Dunleavy administration (finally, one of his contracts with an Outside legal firm is paying off). It focused on technicalities in the Superior Court’s ruling, first, that the statute permits many undisputed, legal uses of the state’s home-school allotments — therefore, the statute should not have been declared facially unconstitutional, meaning struck down in its entirety.
Another technicality in the case centers around the fact that local school districts, not the state, are the ones administering home-school programs.
“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,” Elbert Lin, a West Virginia lawyer that the state hired to take on the case, told the Alaska Supreme Court during oral arguments last week. “The state can’t be held liable for violating the Constitution because they’re not the ones undertaking that action.”
And, frankly, he’s got a point.
Because of the state’s hands-off-by-design approach to home-school programs, we have next to no idea about how allotments are being used. The arguments at the Superior Court suggested that the practice of subsidizing private and religious school tuition with allotments has become widespread in recent years when Dunleavy administration allies — such as Jodi Taylor, wife of Attorney General Treg Taylor, and former Board of Education member Bob Griffin — put out instructions on how to take advantage of the program. But because the state has taken a completely hands-off approach to homeschooling, they’re not collecting spending data or conducting any meaningful oversight, so we don’t have much insight beyond a family that intervened in the case to defend their usage of the allotments as private school subsidies.
A particularly interesting question that has gone unanswered through much of this debate is just how many “home-school students” are really private and religious school students whose families are taking advantage of the home-school program’s light oversight to subsidize the tuition they would already paying for. That certainly seems to be the case in other states, where similarly lax public school spending laws are now being reined in.
Interestingly, despite Dunleavy’s statements that this is all by design, the state conceded that tuition subsidies are not allowed under the statute, pointing to regulations that limit spending to no more than three hours of weekly face-to-face instruction at a private or religious school.
The court’s ruling cited the state’s admission as part of its reasoning for not ruling on that constitutional question:
“If the statute does not permit allotment funds to pay for full-time enrollment in private school, that would make it unnecessary to decide whether this use is unconstitutional. Moreover, we must interpret the statute before we can decide whether it is constitutional as applied to a given set of facts. But the statutory interpretation question has not been presented for our decision.”
In other words, because the state’s appeal didn’t focus on the constitutionality of the de facto voucher program, the Alaska Supreme Court couldn’t weigh in (despite what you may see out of the U.S. Supreme Court, this is how courts are supposed to work).
So, what happens now is that the case is returned to the Superior Court for the scalpel approach. If the plaintiffs in the case want to see it to its conclusion, they’ll need to also rope in a school district — the Denali Borough School District may be a good target because it has been the go-to home-school subsidy for Anchorage’s most prominent private religious school, Mountain City Christian Academy — and ask the courts to determine whether the statutes allow tuition subsidies in the first place.
If we’re looking for any guidance on where the Alaska Supreme Court may be leaning on the underlying question of subsidizing private and religious school tuition with public education dollars, I think it’s helpful to look at an exchange from the oral arguments before the court.
Institute for Justice attorney Kirby West Thomas argued on behalf of families using the allotments to subsidize private school tuition that it was their right to do so. She called the right to attend private schools with state funding a “fundamental right” and pointed to recent caselaw that allowed public spending at religious schools.
However, as Justice Dario Borghesan pointed out, that case was about Maine’s voucher program being allowed at private, non-sectarian schools but not religious private schools.
“This case is factually different,” he explained, laying out a legal standard for determining what kind of limitations on public benefits are constitutional. He noted that placing limits on how money can be spent is permissible as long as it’s not being used as a cudgel to discourage other activities.
In the case of Maine, the state was attempting to promote private schools while effectively discouraging religious school attendance. In this case, he noted the Alaska Constitution bars spending on both private and religious schools.
In the big picture, the ruling allows things to continue on the status quo — which, sure, is a win for Dunleavy — but the whole case has dragged out into the daylight an activity that sure seems like a flagrant effort to flout the Alaska Constitution, and there’s likely an expiration date in the next year for the practice.
It’ll be interesting to see what school districts do in the meantime.
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.