Alaska homeschool programs can continue with simple law change, Legislature's attorneys suggest

Apr. 25—JUNEAU — The Alaska Legislature's attorneys on Tuesday suggested that public homeschool programs can continue operating constitutionally with a relatively simple change in state law.

Earlier in the month, Anchorage Superior Court Judge Adolf Zeman struck down as unconstitutional two statutes enacted in 2014 that allowed public funds to be spent at private and religious schools. The two statutes, proposed by then-Sen. Mike Dunleavy, have been increasingly used by parents to pay for tuition at private and religious schools. But the extent of the practice is not fully known.

Alaska Attorney General Treg Taylor said last week that Zeman's decision was "broad," and appeared to end all correspondence school programs. He said that a proposing a statutory or regulatory solution would be making a "shot in the dark."

"In light of the vague, broad nature of the court's reasoning, it is very difficult to determine what type of program would actually be permitted under this decision," Taylor said last week.

Legal opinions from the Legislature's attorneys contradict that stance. Requested by Rep. Rebecca Himschoot, I-Sitka, and Sen. Bill Wielechowski, D-Anchorage, those opinions state that while those two statutes were struck down, correspondence programs are mentioned numerous other times in state law, and those statutes are currently in effect. The state Board of Education and Early Development could propagate regulations allowing correspondence programs to continue, the Legislature's attorneys said.

"Nothing currently precludes the state board from enacting regulations governing correspondence study programs," they said. Following a provision in the Alaska Constitution, the opinion goes on to say that "the regulations, however, may not permit use of public funds for the direct benefit of private or religious educational institutions."

Four regulations currently used to govern correspondence programs were tied, in part, to the two statutes struck down by the Superior Court's decision, the Legislature's attorneys said, meaning they would likely need to be updated.

[Gov. Dunleavy lays out efforts to preserve ability to spend public funds at private and religious schools]

Before Dunleavy's 2014 statutory change, there were stricter requirements on how correspondence dollars were used and which vendors parents could use with their allotments. But the 2014 statutes allowed public funds to be used at private and religious schools. They also explicitly prevented the state Board of Education from enacting regulations restricting how those allotments are used.

James Fields, chair of the state Board of Education, said in a brief Wednesday interview that board members were waiting to see how the courts acted. But he said the board had time before its next meeting in June to ask questions and make a plan.

"We will do whatever we can to support over 22,000 students this affects," Fields said.

Wielechowski, an attorney, said in an interview Wednesday that the Legislature effectively had two options: rely on the state board to write regulations to create stricter guardrails for correspondence programs, or enact those changes through legislation.

"I think it would be the safest — and provide the most clarity — if we were to simply enact a statute that put us right back where we were prior to those unconstitutional provisions being active," he said.

The state of Alaska on Monday requested that Zeman's decision be stayed until the Alaska Supreme Court had a chance to weigh in and potentially issue its own verdict, which could take months or even years. The plaintiffs — several parents and teachers — asked for a stay until the end of June to avoid disruptions in the current school year. But they indicated opposition to a longer stay because that would effectively allow unconstitutional spending at private and religious schools to continue indefinitely.

The state's Monday court filing said that Zeman's decision was so broad it could have the effect of rendering as "unconstitutional even basic purchases by brick-and-mortar public schools from private businesses like textbook publishers or equipment vendors."

Scott Kendall, an attorney for the plaintiffs and a former chief of staff to former Gov. Bill Walker, said Monday, "That's an absurdly over-broad way to read it."

The Legislature's attorneys also suggest a narrower reading of the implications of Zeman's decision. The issue addressed in the lawsuit "was whether allowing parents to purchase services and materials from private or religious organizations was constitutional," the attorneys said.

Over 22,000 Alaska students are currently enrolled in correspondence programs. Since Zeman's decision was issued, parents, school administrators and legislators have been alarmed that those programs could be in jeopardy.

Following advice from the its attorneys, the Anchorage School District last week temporarily paused any pending or yet-to-be submitted reimbursement requests from parents of homeschooled students. The Juneau School District recently made a similar decision.

"If the stay is granted, the District will be able to resume previous procedures. The District has advised families to continue to keep their receipts, in the event a stay is granted," said Kristin Bartlett, a spokesperson for Juneau schools, in a prepared statement Wednesday.

The Anchorage School Board this week unanimously passed a resolution calling on the state Board of Education to quickly implement emergency regulations that would allow correspondence schools to continue operating.

Anchorage School Board members said during their Tuesday night meeting that they viewed action by the state board as the fastest path to a solution.

"Allocations have been part of public school education in Alaska for decades and decades and decades," said board member Andy Holleman. "But in the absence of a law that allows us to give payments, we felt it prudent to stop."

[Anchorage School District leaders say declining enrollment is driving plans to close multiple schools]

Time left to act?

The Senate Education Committee is drafting legislation intended to provide a statutory fix, and potentially offer guidance to the state Board of Education to develop new correspondence program regulations. The goal is to pass that bill before the end of the session, senators say.

The House on Wednesday indicated it does not believe lawmakers have time left in the session to pass a bill resolving the uncertainty surrounding correspondence programs. After three hours of floor debate, House members narrowly approved a non-binding resolution that called for a stay on Zeman's decision until the end of June 2025.

"What I'm asking for is time, and I think that's what we need," said Rep. Craig Johnson, R-Anchorage, in support of the resolution.

Opponents said that the lawmakers still had time to act before the regular legislative session ends in three weeks. And, they said, a longer stay would allow unconstitutional uses of public homeschool allotments to continue.

"The pre-2014 regulations are very simple. They said, 'You can use allotments for educational purposes. You cannot use it per the constitution on religious or private school tuition,'" said Rep. Zack Fields, D-Anchorage, on the House floor.

The resolution was adopted on a 20-18 vote. All of the yes votes were from Republican members of the GOP-led House majority. All of the no votes were by members of the Democrat-dominated minority. Rep. David Eastman, a Wasilla Republican who doesn't sit with either caucus, voted in support of the resolution.

Daily News reporter Annie Berman contributed to this report.