Dunleavy lays out efforts to preserve ability to spend public funds at private and religious schools

Apr. 18—In the wake of a court decision that struck down key statutes governing Alaska's public homeschooling programs, Gov. Mike Dunleavy said Wednesday that he would not immediately seek to advance new statutes or regulations ensuring the programs can continue.

Anchorage Superior Court Judge Adolf Zeman ruled last week that the statutes, which allowed families to purchase education services from private or religious organizations, violated the Alaska Constitution, which states that "no money shall be paid from public funds for the direct benefit of any religious or other private educational institution."

Lawmakers, educators and parents reacted with alarm to the Friday decision, which appeared at first glance to strike down Alaska's correspondence programs in their entirety. The programs have been used in Alaska for decades.

The Anchorage School District paused processing any pending or yet-to-be submitted reimbursement requests after the court decision, according to a statement sent Wednesday to the families of correspondence students. The district is asking the judge to pause the implementation of the decision, which would allow allotment payments to resume for the remainder of the school year.

Sen. Bill Wielechowski, an Anchorage Democrat and attorney who has taken a lead on education issues in the Legislature this session as part of the Senate bipartisan majority, said Tuesday that the ruling's implications were far more limited than he initially thought. He said his opinions have been supported by recent conversations with the Legislature's attorneys.

To make the programs legal, the state would have to better track the use of the allotments that families receive — which vary from $2,700 to $4,500 per student — and ensure money is not going directly to religious and private schools, Wielechowski said.

Dunleavy, a Republican who has long supported using state dollars for private and religious schools, said Wednesday that he did not share Wielechowski's interpretation of the decision.

The Dunleavy administration planned to appeal the decision to the state Supreme Court, and did not plan to draft regulations or propose legislation that would enable correspondence programs to carry on while cutting out spending at private and religious schools, Dunleavy said in an hour-long news conference in Anchorage.

[Alaska parents and legislators scramble for answers after judge rules homeschool allotments are unconstitutional]

Correspondence allotments have increasingly been used to pay for tuition at Alaska private schools, though the extent of the practice is not fully known. The conservative Alaska Policy Forum has since 2022 maintained a growing list of correspondence schools that allow for their allotments to be used toward private schools, including religious ones.

Attorney General Treg Taylor, a Republican appointed by Dunleavy in 2021, said at the Wednesday press conference that the ruling was so sweeping that — unless the state Supreme Court finds otherwise — it could make it illegal for public schools to spend any money on private vendors more generally, including private textbook companies.

"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.

"In a way, drafting something legislative would just be a shot in the dark," Taylor added.

The wife of Treg Taylor, Jodi Taylor, wrote in 2022 about her intent to use correspondence allotments to pay for her children's education at a Catholic school. The attorney general previously recused himself from matters related to correspondence students, but on Wednesday said he planned to be involved in the state's litigation moving forward.

Taylor said Wednesday that "the situation with (his) kids' schooling has changed significantly" and that he had sought the advice of outside counsel, who determined he no longer had a conflict. Department of Law spokeswoman Patty Sullivan did not immediately provide additional details on the outside counsel's opinion, including who provided it and when.

The state is planning to file a request for a stay on Monday, Taylor said. If granted, it would pause the implementation of the decision. The plaintiffs in the case — several Alaska parents and teachers — have already requested a temporary stay until the end of June, which they said would prevent disruptions in the current school year. But they indicated they would oppose a longer stay — which is what the state plans to request.

Taylor said the state would seek to halt the court order until the state Supreme Court could consider the case and issue its decision. Even on an expedited basis, that would likely take several months.

If the state Supreme Court upholds the superior court's decision, Taylor and Dunleavy said they would seek to appeal the decision to the U.S. Supreme Court.

"If the state Supreme Court just strikes the ability to purchase material or coursework from religious vendors, there's a very good chance that it'll be taken to the U.S. Supreme Court to be challenged there by intervenors, by others that are watching this right now," said Dunleavy.

In 2022, the U.S. Supreme Court struck down a Maine ban on sending public funds to religious schools. But that ban is very different from Alaska's constitutional provision, which prohibits the use of public funds at all private schools, not just religious ones.

Wielechowski said there is "no chance" the U.S. Supreme Court will take up Alaska's case.

"It's a states' rights issue," said Wielechowski. "It would be shocking for the Supreme Court to basically force a state to say, 'you have to allow public dollars to go to private institutions.' That would be almost unheard of."

'An education dividend'

The statutes struck down in the ruling were enacted in 2014, a year after they were first proposed by Dunleavy, then a state senator.

Dunleavy acknowledged at the time that the state constitution prohibited the use of public funds at private schools and proposed a constitutional amendment that would remove the relevant provision. That amendment was never adopted by lawmakers. Legislative attorneys also warned lawmakers that the provisions could be unconstitutional.

Dunleavy said that what he meant at the time was that the state constitution banned direct payments to private schools. However, he said he believed that the current use of allotments was allowed under the constitution because the funding flowed through public schools to parents, who then used it to pay private schools.

"We don't think that's a direct benefit. The plaintiffs want to make the case that it is," said Dunleavy.

Still, Dunleavy said he would support "vouchers," meaning the state's ability to spend money directly at private schools, if they were allowed under the constitution. Dunleavy said he was considering putting forward a constitutional amendment — though it would not likely be proposed in the current legislative session, which will end in less than a month.

Wielechowski said he believes the administration is committed to advancing a constitutional amendment, rather than a regulatory fix, because "they want to allow public dollars to go to private and religious schools."

Passage of a constitutional amendment requires support from two-thirds of the House and two-thirds of the Senate to place the question on the ballot before Alaska voters. It would then take a majority of voters supporting the amendment for it to be implemented. Lawmakers this week indicated that reaching those thresholds was unlikely this year.

Aside from a constitutional amendment, Dunleavy said he is considering advancing what he called an "education dividend," which would allow parents of homeschooled children to spend public funds with even fewer guardrails than those that existed under the allotment program.

Such a program, Dunleavy said, could provide funding to families who would have otherwise received correspondence allotments, with no strings attached.

Dunleavy said his administration estimates that the state spends around $120 million per year on more than 20,000 correspondence students. Not all of that money is directed to allotments — in most cases, half the funds directed to correspondence students are used to cover the costs of school buildings, staff members, and administrators, among other expenses.

"We don't ask people how they spend their PFD. For all we know we may have families using their thousands of dollars in their collective PFDs on their churches. We don't ask what they do or how they spend their money. So we may be looking at an educational dividend," said Dunleavy.

Dunleavy also said he would consider repurposing a fund currently used to provide university scholarships to instead pay out scholarships to grade-level students, which could be used more freely than allotments.

Prior to the enactment of the statutes that Dunleavy had proposed, the state education department had put in place regulations governing correspondence schools, including limits on how allotments could be used and statewide reporting requirements.

"We shouldn't be here and we don't need to be here," said Sen. Löki Tobin, D-Anchorage. "We could propagate emergency regulations today to stabilize the system. We could ensure that our families know and are able to predict what comes in August."

Zeman, the judge, also said correspondence allotments could continue with the right legislative action.

"If the legislature believes these expenditures are necessary — then it is up to them to craft constitutional legislation to serve that purpose," he wrote.

However, Dunleavy said that "statutory considerations won't remedy the situation."

Wielechowski said the governor's unwillingness to advance legislation while an appeal is underway makes action in the final weeks of the current legislative session unlikely.

"If there's no alignment between the executive and the Legislature, it makes it a challenge to pass legislation," said Wielechowski. "My concern with that is it provides uncertainty to people who are homeschooling their kids."