On April 10, 2013 Sen. Mike Dunleavy gave an example in a legislative presentation about an unconstitutional plan for spending public funds that he wanted to legalize with a constitutional amendment.

“A parent could decide I want my child to take a Latin course at Monroe Catholic. The teacher could agree to that in the ILP,” he said, referring to an individual learning plan. Dunleavy told this to the Senate Education Committee.

“Currently we cannot do that under the current constitutional language,” Dunleavy said. There was no question in his mind about it. The state could not pay for a private school course.

That’s why he tried to remove the sentence from the Alaska Constitution that says, “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.”

A few weeks earlier, Dunleavy had asked legislative lawyers about whether it would be legal for the state to pay tuition for a child to attend the private Catholic High School in Fairbanks.

The lawyer said “it appears to be prohibited” under the Constitution.

Dunleavy’s bill to give allotments to students in correspondence schools that could be spent with private schools and other private organizations was repackaged as part of an omnibus education bill in 2014 and signed into law by former Gov. Sean Parnell.

The law allowed a correspondence school student to get public funds for private school courses, but the constitutional language to make it legal failed to get out of committee.

The Alaska Constitution hasn’t changed. But Dunleavy now claims the state can spend public money on private schools.

Appearing on public radio Tuesday, Dunleavy recycled his hypothetical example of a student taking a Latin course at the private high school with public funds.

But now the story has a different ending.

Dunleavy claims it is legal to use public funds to pay for a private school Latin course, which is contrary to the plain text of the Alaska Constitution.

“Our argument is that it’s an indirect benefit to the institution, it’s not a direct benefit to the institution. And so what we’re talking about here is public school students, trying to get a public outcome, a public educational outcome, by using a whole host of different vendors, both private and religious,” he said on Talk of Alaska.

The argument about direct or indirect benefits, an old one, has been dealt with by the Alaska Supreme Court in a 1979 ruling deciding that tuition grants to private colleges are unconstitutional.

The court said, “we have no difficulty in concluding that the tuition grant program is in its effect a direct benefit to private educational institutions and therefore violates article VII, section 1 of our Constitution.”

In issuing his decision Friday that declared the 2014 allotment plan unconstitutional, Anchorage Superior Court Judge Adolf Zeman was repeating what Dunleavy had to admit a decade ago, but now denies—that the Alaska Constitution forbids spending public money on private education.

Dunleavy said Tuesday that “right now it’s unconstitutional to give money directly to private or religious schools.”

“In 2013, we had a discussion on that. I had a constitutional amendment to try and change that. There was no appetite for that in the Legisalture, so that was dropped. That was left behind,” he said.

“If you buy a Latin course, you have a single mom, let’s say, two kids, you live a block away from Monroe Catholic, you buy a Catholic, excuse me, a Latin course from that institution. Does that constitute a direct benefit to the institution? Is that the purpose? Or does that constitute an indirect benefit and the purpose is to help that child learn Latin. That’s the question.”

It has long been unconstitutional in Alaska to give money directly or indirectly to private or religious schools, as Dunleavy admitted a decade ago, but now denies, as demonstrated by the new ending he gives to his recycled story about the Latin course.

In recent years, many of the public correspondence schools have set up systems to recruit private school students to enroll, providing direct benefits to private schools.

Mountain City Christian Academy in Anchorage uses the public correspondence school set up by the Denali Borough to automatically direct state payments to families of the church-run school. Families are required to take action on their own if they want to decline state money.

In Fairbanks, hundreds of families with students at the Catholic Schools have been able to get up to $2,560 in public funds a year by enrolling kids in both the public BEST homeschool and the Catholic school.

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