Plaintiffs in landmark school case seek stay to reduce correspondence uncertainty
On Monday, the parents and teachers who won the landmark correspondence school case took a big step toward ending the immediate uncertainty over the future of the programs by asking the court for a limited stay.
They asked that the ruling declaring the allotment law unconstitutional be delayed until June 30, the end of the state fiscal year, which would allow the school year to end without interruption, said Scott Kendall, the attorney for the plaintiffs.
This would help parents who relied on the law as it was at the start of the school year, Kendall said.
The Outside group called the Institute for Justice said it will also seek a stay in the case, but it wants a longer one that will last until the Alaska Supreme Court issues a final ruling.
The Dunleavy administration will appeal this case, but it doesn’t have a strong hand in defending the governor’s desire to keep spending public money on private organizations or private and religious schools.
The most important thing is this line from the Alaska Constitution: “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.”
Then there are the repeated admissions of Sen. Mike Dunleavy in 2014 that the plan to spend public funds on private and religious schools was unconstitutional and required a constitutional amendment. The amendment never passed.
When the Dunleavy plan to pay for private school services was slipped into a broader education bill in free conference committee late in the session a decade ago, Dunleavy did not mention that it was unconstitutional.
The plain text of the law declared unconstitutional conflicts with the plain text of the Alaska Constitution. The state officials and right-wing politicians who claim to not understand the problem are not being honest with themselves or the public.
It’s little wonder that Judge Adolf Zeman ruled as he did, considering the litany of losing arguments from the state:
The state claims that most of the spending authorized by the disputed law is constitutional.
The state admits that “a handful of statements by SB 100’s sponsor, then Senator Dunleavy, suggest he believed that public funding for even a single private school class would violate the Constitution . . .”
The “Alaska State Consitution prohibits public funds going to private or religious educational service providers,” Dunleavy said in 2014.
The Dunleavy administration says a legislator’s opinion about the Constitution—in this case the opinion of former Sen. Mike Dunleavy— “is of no matter.”
The state claims that it bears no responsibility for the ways in which school districts spend correspondence funds. “School districts need not approve improper uses,” the state says. The Dunleavy administration claims there is no law forcing it to “ensure that public funds are lawfully spent.”
The Dunleavy administration complains that the target of the lawsuit should not be the state, but the individual school districts. Neither the state education department “nor the attorney general has a general obligation ‘to ensure that a school district’s expenditure of public funds complies with state law.’”
The Dunleavy administration backs away from the 2022 attorney general’s opinion from the Dunleavy administration that advised school districts on the spending of educational allotments. The opinion defended the idea of spending public money for private schools, saying educating students is a public purpose. The Constitution says otherwise.
After the wife of Attorney General Tregarrick Taylor announced her family’s plan in 2022 to seek $8,000 from the state to reimburse them for most of the $12,000 cost of private school tuition for their two youngest children, the AG recused himself from the matter. Deputy Attorney General Cori Mills wrote an opinion that said using the state allotment “to pay most or all of a private educational institution’s tuition is almost certainly unconstitutional.”
The statute the state is trying to defend came under scrutiny after the attorney general’s family publicized its plan for tuition reimbursement. “Thanks to Dunleavy’s 2014 statute, private schools have been added to the list of allowable vendors for parents,” wrote Jodi Taylor, one of the leaders of the Alaska Policy Forum.
On November 16, 2023, Attorney General Taylor sent a directive to school districts about the parental notification law, a separate matter, that contradicted numerous claims the state made in this case about having no authority over school districts.
As Judge Zeman wrote, the constitutional convention minutes and the discussion during the convention about the ban on private schools “clearly support” the arguments made by the parents and teachers who challenged the state law. “Notably, the state does not make any arguments citing to the constitutional convention,” he wrote in the order declaring the law unconstitutional.
Your contributions help support independent analysis and political commentary by Alaska reporter and author Dermot Cole. Thank you for reading and for your support. Either click here to use PayPal or send checks to: Dermot Cole, Box 10673, Fairbanks, AK 99710-0673.
Write me at dermotmcole@gmail.com.