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Lawsuit says Alaska statute allowing public funding to go to private schools is unconstitutional


Lawsuit says Alaska statute allowing public funding to go to private schools is unconstitutional

Jan 25, 2023 | 9:59 am ET
By Lisa Phu
Lawsuit says Alaska statute allowing public funding to go to private schools is unconstitutional
Students gather in a hallway. (Photo by Eyecrave Productions/Getty Images)

The question is resurfacing, but this time in a lawsuit: Can families enrolled in a state-funded correspondence program use their allotment to pay for private school classes? Last June, the Alaska Department of Education and Early Development didn’t know the answer so they asked the state’s attorney general’s office, which offered a response that drew some lines but left room for interpretation. Now, some Alaska families are suing the state with the hope of getting a definitive answer.

“It’s a constitutional issue,” said Tom Klaameyer, president of NEA-Alaska, which is supporting the lawsuit financially. 

Article VII, Section 1, of the Alaska Constitution says, “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.”

“We want to make sure all of the public money that is rightfully allocated to the public school system stays within the public school system in order to give our students the best chance to succeed possible,” Klaameyer said.  

The complaint was filed Tuesday in Superior Court in Anchorage against acting commissioner for the Alaska Department of Education and Early Development Heidi Teshner. The four plaintiffs are parents or teachers from Anchorage, Craig and Fairbanks. 

The lawsuit challenges Alaska Statute 14.03.310, which allows families to purchase nonsectarian services and materials from a public, private, or religious organization with what’s known as a correspondence student allotment. 

The complaint said the statute “is being used to reimburse parents for thousands of dollars in private educational institution services using public funds thereby indirectly funding private education in violation … of the Alaska Constitution.” 

School districts in Alaska can establish state-funded public correspondence schools for families who choose to homeschool their children. The terms correspondence school and homeschool are often synonymous and used interchangeably in Alaska. 

The state funds correspondence program students at 90% of $5,930, the base amount the state pays per student. Correspondence programs can offer a student funding allotment, which can be spent on educational-related needs of the student, like books, classes, school supplies, technology support, tutoring, music or activity lessons. Allotment rates vary from program to program. 

Alaska has about 36 correspondence school programs in the states, according to the correspondence school directory on the Alaska Department of Education and Early Development website.

Last June, the Beacon found at least one Alaska correspondence program that has been reimbursing families for non-religious private school classes for more than three years, and another that was planning to start doing so this current school year. The schools cited the statute as allowing for the practice.

History of statute language

The statute language was originally part of Senate Bill 100, which then-Sen. Mike Dunleavy sponsored in 2013. That same year, Dunleavy also sponsored Senate Joint Resolution 9, which aimed to amend the constitution by deleting the line: “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.”

“[Dunleavy] explained in Senate Education Committee meetings that amending the constitutional language was required so that parents could enroll their children in private school courses,” the complaint said. 

SJR 9 wasn’t approved, but the language of SB 100 eventually passed as part of House Bill 278. 

“This statute collides with our constitution in a real substantive way that can’t really be mitigated,” said Scott Kendall, attorney at Anchorage law firm Cashion Gilmore & Lindemuth, who is representing the plaintiffs in the lawsuit.

The lawsuit asked the court to declare the statute unconstitutional and to prohibit any current or future use of public funds to reimburse payments to private educational institutions in accordance with the statute. 

“Our position is the statute should fall, but at the end of the day, clarity is what’s needed,” Kendall said.

How widespread is the practice?

It’s unclear how widespread the practice of correspondence schools reimbursing families for private school classes is. The state’s education department did not reply to questions on the issue. 

Kendall doesn’t know: “As part of this litigation, we hope to find out what the scope of the issue is. But I think there’s no denying that it is growing and being promoted. It’s being promoted by the schools.” 

Anchorage Christian Schools, which has a mission to “develop Christ-centered world changers,” encourages families to offset the rising costs of private education by enrolling in a state funded correspondence program. 

Anchorage Christian Schools Vice President of Education Calvin Hoffman said in a recent YouTube video that “the baseline tuition rate will increase by 5% for the 2023-2024 academic year.” The private school’s website lists 2023-2024 tuition rates for kindergarten through fifth grade as $8,395 and for sixth through 12th grades as $9,275. 

“If you enroll in one of the approved correspondence programs – Family Partnership, Mat-Su Central, Denali Peak or Raven – you will be eligible for reimbursement from your correspondence program for courses” taken at Anchorage Christian, Hoffman said in the video. “This opportunity could help reduce the out-of-pocket costs to you by almost 50%.” 

Its website offers the same information under the heading “tuition assistance.” No one at Anchorage Christian Schools immediately responded to an interview request. 

Kenai Classical, another private school, promotes the same thing on its website’s tuition page. If a family self-pays, the 2022-2023 tuition is $8,800. If a family co-enrolls with the Alaska correspondence programs Connections or Interior Distance Education of Alaska (IDEA), tuition could go down to about $6,200, according to its website. The website says, “Connections or IDEA allotment can be used towards mathematics, language, and electives.” 

The Beacon reached out to four different statewide correspondence programs listed by the two private schools – Connections, Denali PEAK, IDEA and Raven – to ask about allotments going toward private school classes. None of the schools returned requests for information, except IDEA. An employee said the school couldn’t comment at this time.

Attorney general’s opinion

Last July, Assistant Attorney General Cori Mills offered a written opinion on the issue. Attorney General Treg Taylor had previously recused himself from the legal review. Taylor’s wife, Jodi Taylor, is a major proponent of the concept and wrote publicly last May about her plan to seek up to $8,000 in reimbursement from public funding for their two kids attending an Anchorage private school.  

Mills’ opinion said public money can be spent for homeschool students to attend one or two classes in a private school, but can’t be used for most of a student’s private school tuition.  

The 19-page opinion said that it’s sometimes legal to use public funds for private school classes through the state’s correspondence allotment program.

“But the more it looks like you’re just trying to send your kid to private school and get subsidized by the state, I think that’s when you start getting into unconstitutional territory,” Mills said at the time. 

To help formulate the opinion, Mills had looked at minutes of the Alaska constitutional convention to see what the framers of the constitution said.  

“At the heart of it, I really believe the framers were concerned with supplanting a public education with a private education. That’s what their worry was,” Mills said at the time. “That is different than supporting or supplementing a public education with the use of some private school resources.” 

Kendall said he didn’t find Mills’ opinion constructive.

“That opinion, whether I agree with or not, seemed to just sort of indicate that there’s a gray area a mile wide,” he said. 

In response to the lawsuit filed Tuesday, Mills said she continues to be proud of the work the Department of Law did to issue the opinion she authored.

“We continue to believe the opinion landed in the right place, taking into account the nuance that the constitutional delegates intended. As is the department’s duty, we will defend the statute in court, and it continues to be our position that the statute is, on its face, constitutional,” she said in an email Tuesday.