Opinion: Zeman’s Decision Was Clearly Erroneous


Anchorage Superior Court Judge Adolph Zeman’s recent 33-page decision declaring two key homeschool statutes unconstitutional is riddled with errors of fact and law.  The bottom line is this:  The statutes are clearly constitutional and Zeman had no authority to throw the educational plans of 23,000 Alaskan children into a state of confusion and disarray. 

It’ll take a little time to dissect some of Zeman’s errors, so grab a beverage and read on for the details.

Zeman’s ruling hinged on his determination that public funds used by local school districts to reimburse parents for correspondence course payments are a “direct benefit” to the institutions that provide those courses. 

Since the homeschool statutes allow parents to purchase correspondence courses from private or religious educational institutions, Zeman concluded those statutes violate the third sentence of Article VII, Section 1 of the Alaska Constitution that prohibits state funds going to the “direct benefit of any religious or other private educational institution.”

Zeman was flat out wrong.  The question of what is a “direct benefit” and what is an “indirect benefit” was discussed extensively by our Founders at the Constitutional Convention. 

Article VII was drafted by the Preamble & Bill of Rights Committee chaired by Dorothy Awes, an Anchorage lawyer who was later inducted into the Alaska Women’s Hall of Fame.  When Section 1 came up for consideration on the convention floor, the Committee asked Delegate Roland Armstrong to speak on its behalf. 

Armstrong was a Presbyterian minister.  Coming to Alaska in 1940, he had been the minister of the First Presbyterian Church in Fairbanks and then Anchorage. In 1950 he moved to Juneau and became the field representative for the Board of National Missions for the church, traveling throughout Alaska.  After the convention he became the president of Sheldon Jackson School. 

Armstrong began his presentation to the Convention by saying, “in Section 1 the Committee has kept a broad concept and has tried to keep our schools unshackled by constitutional roadblocks.”  That key statement of our Founders’ intent should have stopped Zeman in his tracks.

Armstrong brought up the “direct benefit” language and said it prohibited use of public funds for “maintenance and operation” of schools.   He said it “does not prohibit the contracting or giving of services to the individual child, for that child benefits as his part of society.”  Towards the end of the debate on Section 1, Armstrong defined direct benefits as “the direct appropriation for building or maintenance of private institutions.” 

The use of public funds for educational materials and services from private educational institutions was specifically addressed by the Convention after Delegate John Coghill introduced an amendment that would have added the words “or indirect” immediately after the word “direct” in Section 1. 

Delegate Yule Kilcher from Homer spoke directly on this issue.  He stated his five youngest children were educated at home through “Calvert courses” which the government paid for.  His two oldest children attended public school by “hiking over the roads”.

For readers who haven’t heard of the Calvert school, it was a private institution established in 1896 when four Baltimore families hired a German school teacher to conduct traditional kindergarten classes for their children.  Calvert developed a Home Instruction Division in 1905 and eventually enrolled students in all 50 states and hundreds of countries. 

Kilcher was concerned that prohibiting “indirect benefits” in the Constitution would cut off his ability to receive public funds for these courses.  He said, “I understand that the Calvert course could possibly be construed not to be available anymore either if indirect help were not available to a private school.”

Not a single delegate disagreed with Kilcher’s express intent to use public funds for payments to private educational institutions.  The only person who responded to Kilcher was Coghill who tried to assure Kilcher that his proposed amendment would not prevent Alaskan families from receiving state support for the Calvert courses.

When Coghill first introduced his amendment to prohibit “indirect” benefits, he said the state could still contract directly with private or parochial institutions to provide a service to the public.  He said, “I do not deny that to the private schools because I feel that that is an instrument of public benefit because the child is benefitting from it from a public standpoint, and a contractual agreement between the organization and our organized state would therefore be in effect.

The majority of the delegates didn’t buy Coghill’s assurances and thought he was muddying up the water.  Delegate Ralph Rivers, formerly the Alaska Attorney General, warned Coghill, “you are only stirring up an argument when you talk about prohibiting the disbursement of money for an indirect benefit to a parochial or private institution.  You are reaching clear out to ad infinitum in the realms of logic and association. You don’t treat it that way, you don’t stir up that kind of an argument.  If there is a public purpose for which money is to be extended it does not matter if some of it does result in an indirect benefit to some private concern.”

Immediately after Kilcher’s speech on the importance of not preventing state funding of private correspondence courses, and Coghill’s conciliatory reply, the Founders voted.  Coghill’s amendment to prohibit indirect benefits was defeated by a vote of 34-19. 

Joining Kilcher and Rivers were all seven members of the Committee, mostly attorneys, which drafted Article VII.  Other notable delegates wanting to preserve indirect benefits to private institutions were President Bill Egan, Secretary Thomas Stewart, Frank Peratrovich, Marvin “Muktuk” Marston, and Mildred Hermann. 

It’s quite disturbing that Zeman circumvented the debate precisely on this point and applied the legal gymnastics and judicial activism that Rivers, Awes, and the majority of our Founders specifically sought to avoid.  By writing, “the minutes of the Alaska Constitutional Convention demonstrate that the delegate’ understanding of the term ‘direct benefit’ forbids the use of public funds for educational materials and services from private educational institutions”, Zeman landed on the opposite side of the truth.   

Did Zeman think nobody would read the minutes?  Or did he think it didn’t matter what the Founders said, that he could rely on the Alaska Supreme Court to back him up by further expanding the rationale of its 1979 decision in the Sheldon Jackson case?

Our Supreme Court has grown notorious over the last 30 years for ignoring our Founders and rewriting the Constitution in defiance of statutes that express the will of the people through their elected representatives.  The Court continues to gain notoriety for ignoring the Constitutional rights of vulnerable and innocent citizens like Thomas Jack, Jr., AK Mom, and her five children.  

Zeman’s decision needs to be understood for what it appears to be – another domino in a high stakes political game.  An action necessitating a reaction.  The ultimate fight is over which branch of the Alaska government will set policy in educating our children – the will of the people through elected members of the Legislature or the will of special interests through the unelected members of the Supreme Court. 

The first domino was set in motion by the National Education Association, the largest union in the country and one of the most powerful lobbyists in Alaska.  NEA funded the lawsuit which specifically requested Zeman to declare the homeschool statutes unconstitutional.  He not only delivered, but Zeman maximized the resulting political chaos through the timing of his release.  I’d like to know whether the judge intended this result and the best way to find out is through a grand jury investigation and report.

Senator Shelley Hughes and Representative David Eastman brought this concern to the forefront in their essays on Zeman’s decision.  Hughes thought it unfair that Zeman took 14 months to create a problem, then gave the Legislature just two months to fix it. 

The court docket gives substantial credence to Hughes’ concerns. The parties to the lawsuit began briefing the issue of constitutionality back in March of 2023 and were finished by early August.  Oral argument was originally scheduled for September 13, but Zeman vacated that date and rescheduled it for October 24.  Afterwards, Zeman took the matter under submission. 

Zeman could have easily rendered his decision before the Legislature convened in January.  Instead, he sat on it for six months, finally mailing out his decision to the parties on a Friday afternoon, April 12. 

When the Legislature was informed of the decision, they had just one month to solve the crisis Zeman created.  They failed, generating only a tremendous amount of political uncertainty and passing a stopgap measure that has its own set of constitutional problems.  Zeman put the Alaska Supreme Court squarely in the driver’s seat to decide our educational policy.

It has been reported in various media outlets that some legislators believe Zeman made the right decision, and other legislators believe Deputy Attorney General Cory Mills went too far in her 2022 Opinion.  I challenge each of those legislators to read the Convention minutes carefully and then do anything but fully support the constitutionality of the homeschool statutes.     

In the process of striking down the statutes Zeman seemed to take a political swipe at Governor Mike Dunleavy, who sponsored them as a Senator back in 2013-2014 through Senate Bill 100.  First, Zeman falsely stated SB 100 died in committee.  Second, Zeman implied Dunleavy engaged in deceptive practices during the Free Conference Committee, making no mention of substantial amendments Dunleavy made to SB 100 to satisfy initial concerns of constitutionality.

Zeman’s decision is littered with procedural problems.  For instance, where does a District 3 judge sitting in Anchorage derive authority over school districts, parents, and children in Fairbanks, Nome and Juneau?  Compounding this issue is the inability of citizens, harmed by Zeman’s decision but residing outside District 3, to vote against his retention as a judge. 

The complaint didn’t allege facts showing the statutes caused any quantifiable damages to the plaintiffs.  Local school districts making the allegedly unconstitutional reimbursement payments weren’t named as parties.  Basically, the NEA was asking an unelected judge in the Third Judicial District to exercise a “super veto” over legislation that had been on the books for 10 years and then somehow apply that veto to every citizen in every district of Alaska.

Even the Governor doesn’t have that kind of veto power.  Under the Constitution, the Governor must veto a bill within 15 days of receiving it.  If the bill is vetoed, the Legislature can override it either by a 2/3 or ¾ majority, depending on the subject. 

The Governor’s veto power doesn’t include the power to strike out portions of bills that don’t appropriate money.  It’s all or nothing.  But as you’ll read below, Zeman carved out about 5% of the language of a 10-year-old Act.  Where specifically in the Constitution did Zeman obtain this superpower?

Over the past decade, the homeschool statutes have enabled local school districts to pay out hundreds of millions of dollars for the benefit of Alaska children.  Thousands of parents around the state have worked with public teachers and districts to build reliable education plans which can best fulfill their children’s dreams.  If the NEA and Zeman can put an abrupt halt to those plans, then our political system has gone off the rails.  

If the NEA truly had a problem with the constitutionality of the homeschool statutes, why didn’t they challenge them back in 2014?  Judging from their complaint, it seems their concerns weren’t prompted until 2022 when Jodi Taylor, the Attorney General’s wife, wrote an opinion piece in a media outlet saying the statutes could be used to help fund private school tuition. 

If the NEA didn’t like where Taylor was heading, why didn’t the union use its powerful lobby in the Legislature to pass more restrictive statutory language?  If the NEA was confident it could better leverage the judicial branch to accomplish its public policy objectives, Alaska is in a very dark place.

One of several people to publicly testify in 2014 in support of SB 100 was Kodiak Island School Superintendent Stewart McDonald.  He applauded the expansion of innovative programs enabled by Dunleavy’s bill and used his district’s suicide rates to emphasize their importance.  He said after 5.5 years of innovative programs, there had been no suicides.

Zeman’s decision proves Alaska has become a state where a powerful lobby group can influence a relatively young, inexperienced judge to abruptly wipe away years of legislative policy advancements and make our children more vulnerable to suicide.  This is a problem that justifies a constitutional convention, but the NEA has funded the opposition to that, too.   

As noted above, Zeman attempted to apply a line-item veto to a legislative Act, something even the Governor can’t do.  The homeschooling statutes constituted just 2 pages of the 40-page Act known as FCCS HB 278.  The Act was the 15th bill signed by Governor Sean Parnell in 2014.

The Act was comprehensive, extensively debated and negotiated in various committees in both the Senate and House.  The final version contained 62 sections that added, modified, or repealed various statutes.  The Act provided for increases in the Base Student Allowance.  Undoubtedly, during the process some legislators agreed to vote for sections they originally opposed because they supported others. 

There was no severability clause in the Act, it was a package deal.  Zeman had no right to take his red pen to parts of the Act he didn’t like, while maintaining the portions he liked.

Compounding the illegality of Zeman’s decision are other portions of the Act which specified payment to certain educational institutions that may have been private.  Section 31 of the Act allocated public funds to Yuut Elitnaurviat Inc., Southwest Alaska Vocational and Education Center, Partners for Progress in Delta Inc., and Amundsen Educational Center for capital improvements.  If any of these institutions were private, such appropriations would be the most likely component of the Act to trigger Delegate Armstrong’s definition of a direct benefit.    

Furthermore, Sections 36 through 46 of the Act provided tax credits for cash contribution accepted by private organizations and tribal entities.  How Zeman could permit these sections in the Act to stand while striking down the homeschool section defies logic and any reasonable legal reasoning. 

One of my sources for this story believes the intent of the NEA lawsuit was to stem the tide of students leaving the “bricks and mortar” schools that are failing them.  Since 2014, the number of Alaska children being home schooled has doubled and is now approaching 20% of all students.  Thanks to NEA and Zeman, Alaskan families that can’t afford correspondence courses without government support may have no choice but to return to traditional schools.  Their actions are harming the most vulnerable.  

NEA’s complaint contains 37 paragraphs alleging facts.  Most of them focus on the actions of Dunleavy or the Taylors.  Not one of them alleges that homeschooled children are receiving a substandard or inadequate education.  The complaint avoids any mention of the many personal and public benefits that private correspondence courses provide.   

The NEA isn’t a good advocate for our children’s education if it seeks to deny these benefits.  The union needs leadership capable of recognizing that individualized learning plans offering correspondence courses open many doors to help our children achieve their dreams.  Why should specialized, more convenient, or higher quality courses available through private institutions be available only to the rich who can afford them?   

Oral arguments before the Alaska Supreme Court are scheduled for June 27.  The Court would be wise to quickly overturn Zeman’s decision and let the Legislature decide in the next session if they want to change their existing educational policy.  That’s the way our Founders wanted it done.

Zeman’s role in advancing the NEA’s objectives, whatever they are, deserves a grand jury investigation led by an independent special counsel.  Eastman has called for the impeachment of Zeman, who is up for a retention election this fall.  Impeachment is the only recourse available to Alaska citizens living outside the Third Judicial District.

If Zeman has nothing to hide, he should welcome a grand jury investigation to help clear his actions.  All Alaskans impacted by Zeman’s decision deserve to know the truth from an independent, non-partisan source.  That is exactly the purpose of the investigative Alaska Grand Jury.  Our Founders understood that no branch of government can do a better job of getting to the truth. 

About the writer

David Ignell was born and raised in Juneau, where he currently resides.  He holds a law degree from University of San Diego and formerly practiced as a licensed attorney in California.  He has experience as a volunteer analyst for the California Innocence Project, and is currently a forensic journalist and author of a recent book on the Alaska Grand Jury.


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