Alaska Supreme Court weighs whether correspondence education lawsuit wrongly targeted state

By: Claire Stremple, Alaska Beacon

(Photo by Andrew Kitchenman/Alaska Beacon)

Alaska Supreme Court justices on Thursday weighed whether a lawsuit seeking to have the large portions of the state’s correspondence school program found unconstitutional wrongly focused on the state government.

The justices heard arguments in the appeal of a Superior Court ruling that found a correspondence school program law to be unconstitutional.

A central question from the justices during oral arguments was whether plaintiffs should be suing the state’s education department or individual districts.

The case whose decision is under appeal is State of Alaska, Department of Education and Early Development v. Alexander, in which plaintiffs argued that it is unconstitutional for public education money to be spent on private school tuition. Superior Court Judge Adolf Zeman found the spending unconstitutional and struck down the parts of statute that allow homeschool allotment money; he suggested lawmakers could rewrite the law to make it constitutional.

The state constitution does not allow the use of public funds for the benefit of private or religious schools.

Attorneys for the state of Alaska, a group of parents whose children attend private school using allotment money and another set of parents who argue that spending is unconstitutional all made oral arguments. Justices interrupted all three of the attorneys’ arguments with pointed questions about how the case should be decided.

Attorneys for the state appealed Zeman’s ruling and said the case should not hold the state’s education department to account because individual school districts are the only oversight body for homeschool spending.

In May, Gov. Mike Dunleavy and Deputy Attorney General Cori Mills argued the lower court’s ruling should be thrown out because it is too broad, but Elbert Lin, a Virginia lawyer hired by the state, argued that since the Alaska statute that governs homeschool allotment spending has many constitutional applications, such as spending for school supplies as retailers like Target, it should not be thrown out — even if there is also the opportunity for the statute to be applied unconstitutionally.

“It is irrelevant whether the provision might be applied unconstitutionally in the view of the plaintiffs or even this court,” he said. Lin argued that if there is an unconstitutional use of the funds, the plaintiffs should sue individual districts, not the state. That way the courts can enforce any unconstitutional spending with a “scalpel rather than a sledgehammer.”

The state’s education department was once responsible for monitoring homeschool allotment spending, but a 2014 law proposed by Dunleavy, then a state senator, put that responsibility on districts instead.

Justice Dario Borghesan probed Lin’s argument and asked if state law allows allotments to be spent on full-time private school tuition. He said “both text and legislative history” suggest that full-time enrollment in private school is not correspondence study, which requires a certified teacher to come up with a learning plan for the student. “That seems somewhat nullified, or maybe a rubber stamp, if the child is just attending private school full time,” he said.

Anchorage parents who use homeschool allotments to pay for private school educations joined the case as intervenors, as people who could be affected by its outcome. Their attorney, Kirby Thomas West, took a different tack than the attorney for the state, and argued that the court should make a decision to reverse the lower court’s ruling. She argued that it would violate the United States Constitution to tell parents how they can spend their money.

Borghesan pushed back on that assessment because allotments are public school money. He cited previous case law: “While parents may have a fundamental right to decide whether to send their child to public school, they do not have a fundamental right, generally, to direct how a public school teaches their child,” he read. Essentially, he said, states have authority over how public education money is spent, so the state can stipulate that it may not be spent on a private education.

West sought to make her point through a different comparison: “It would be absurd and patently unconstitutional to suggest that the state must police the use of Permanent Fund dividends to ensure that no Alaskan ever uses that money to defray the cost of their child’s tuition at a private school,” she said. “It’s just as unconstitutional to do so here.”

She asked the justices to place a stay, which is a pause on the implementation of a ruling, on the lower court’s decision if they sent the case back to the lower court for reconsideration. The stay would mean her clients could continue to spend public education money on private school tuition.

After the arguments, Chief Assistant Attorney General Margaret Paton-Walsh said she thought the case went well for the defense. “It’s always hard to read the tea leaves, but I think some of the justices certainly seem to be pretty skeptical of that Superior Court decision,” she said.

She pointed out that it is not typical for the intervenors to make a distinct argument from the defense: “So I think that creates an extra wrinkle for the justices to try to noodle through as they think about the case,” she said.

The plaintiffs’ attorney, Scott Kendall, asked the court to uphold Zeman’s ruling. He argued that the judge was right to strike down homeschool allotments because the intent of the statute is to allow unconstitutional spending.

He pointed to legislative history in his appeal: when Dunleavy proposed the allotment law, he also sought a change to the state constitution to allow public funds to be spent at private schools. Dunleavy also proposed enacting school vouchers, which like the amendment, did not pass.

Kendall said that for that reason the plaintiffs should not have to sue individual school districts, because the statute is meant to allow unconstitutional spending: “When a statute grants a plainly unconstitutional power, as it does in this case — and in fact, the legislative history meticulously explains that that was the very sole reason why this legislation was passed — then it’s clearly unconstitutional on its face,” he said.

Borghesan pushed back on this argument. He repeatedly asked Kendall why the whole statute should be thrown out, rather than targeting unconstitutional uses by suing districts. “Why does that bad purpose, you know, defeat the whole rest of the statute? I mean, we have separation of powers. We’re respectful of the Legislature’s actions,” he said. “We kind of have a duty to uphold constitutional applications of statutes.”

Kendall conceded there may be a way to keep the statute without allowing public education dollars to pay for private school tuition: “There is a possibility this court, with ingenuity, could do a limiting construction — could sever parts of this — and that would be an outcome we would support,” he said.

He then referred to an early court case, in which the Supreme Court invalidated state scholarships for Sheldon Jackson College, a Sitka institution that later closed.

“Because the real core concern here, again, is the core concern when you go back to the Sheldon Jackson case, which is, are we using public funds to subsidize a private educational purpose?” Kendall said. “Here it is clear. It’s clear from the purpose of the statute, it’s clear from the interveners’ very presence here, it’s clear this is happening, and it’s clear this was the purpose of the statute.”

Deena Bishop, the commissioner of Alaska’s Department of Education and Early Development, was in the courtroom. She said after the hearing that, in her view, districts are doing a good job of ensuring state money is spent constitutionally. She did not directly say whether the state education department is in a position to regulate spending. Foremost, she said, her interest is correspondence students: “My purpose and goals are to have a great education every day for young people, and there are nearly 23,000 — it’s 22,900 students — that we want to ensure that their education continues without disruption.”

Chief Justice Peter Maassen said the court would consider the appeal and issue “something” but did not give a time frame for a decision: “No timelines are guaranteed, but we understand the urgency of the matter,” he said. Without a new court ruling, Zeman’s ruling would go into effect on Monday.

Editor-in-Chief Andrew Kitchenman contributed reporting to this story.

Correction: Margaret Paton-Walsh’s title has been corrected.