Unique Alaska program stirs education choice legal battle

Andrea Moceri is one of three parents represented by the Insititute for Justice in its defense of Alaska’s school choice program. Her son, Gio, uses the state’s funding allotment program to pay for her son’s classes at a private school.

What started in 1939 to ensure students in even the most remote areas of Alaska got access to public education is now at the center of a court battle over access to education choice.

Known as correspondence school programs, they allowed public schools to send assignments by mail or float plane to students, who would complete course packets and return them for grades.

When the homeschooling movement began in the 1970s and ’80s, correspondence programs became popular with parents who used them as part of their children’s education plans.

In 1997, the law was broadened to allow families to design customized learning plans for their children and be reimbursed for certain expenses. Funding allotments range between about $3,000 to $5,000 depending on which of the 34 correspondence schools families choose.

In 2014, Alaska lawmakers approved legislation that allowed parents to spend the money to send their children to nonpublic schools. Prominent families, including the wife of Alaska Attorney General Treg Tayor, took advantage of this option.

Seven months after Jodi Taylor published a blog post in 2022 encouraging families to use their allotments this way, a group of plaintiffs sued the state and argued that the legislation violated the Alaska Constitution.

The Institute for Justice, a public interest law firm, is helping three families to intervene in the case and defend the program. Funding allotments equal 90% of the state’s base funding for education.

Kirby Thomas West

Kirby Thomas West, the lead attorney on the case for the Institute for Justice, sat down recently to discuss the case. A judge is expected to hear motions from the parties on Oct. 24. (Answers have been edited for brevity and clarity.)

Q. One might presume that Espinoza v. Montana, Carson v. Makin, in which the U.S. Supreme Court ruled that states could not exclude private religious schools from participating in education choice programs, would have stripped a case like this of any merit. What legal arguments are the plaintiffs using to justify it?

A. Alaska’s constitution is a little bit different than Montana and other states that have Blaine Amendments in that it does not prohibit state funding of sectarian institutions. It actually says that the state cannot give direct funding to private educational institutions. So, the argument of plaintiffs is that this is a direct payment to private schools. So, it’s a little broader than the Blaine Amendments that target religious schools.

Q. But doesn’t this money go to the family?

A. The state can’t write checks to private schools and choose to maintain the private schools, but certainly, the state can give a benefit to families who are allowed to use it in a variety of ways. Many universities offer online courses popular with correspondence program families. The state doesn’t even know if the money is going to a private institution. We analogize to a food stamp program. No one says this is a program for the direct benefit of Safeway or Aldi. The state’s not choosing an institutional beneficiary. The beneficiary is the individual who needs help getting food. And in this case, it’s the families who need help with educational expenses.

Q. What arguments are the plaintiffs using to make the case that this is a direct benefit to private institutions?

A. The case plaintiffs are relying on, Sheldon Jackson v. State, involves a scholarship tuition grant program for college students attending private universities in Alaska. The program was struck down as a violation of Article 7, Section 1, which is known as “the education clause” of the state constitution. In this case, only students going to private schools were eligible to participate in the program. All money given to students was used for tuition at private universities.

Q. What is the Alaska Department of Education and the Institute for Justice using as a defense?

A. Our argument is that even if you maintain that the Sheldon Jackson case was correctly decided, here, the families, in this case, have the ability to choose between public and private goods and services and use their allotments in a wide variety of ways. It’s not limited as it was in that case.

Q. What happens if the court sees it differently and sides with the plaintiffs?

A. If the court is inclined to read the Alaska Constitution in a much broader way, if it prevents any funding that might end up at a private institution, they are bringing the Alaska Constitution into direct conflict with the U.S. Constitution. The U.S. Supreme Court said in case law that is 100 years old that parents’ fundamental liberty interest in the control and upbringing of and education of their children is protected by the U.S. Constitution. And case law says part of that is the choice to send a child to private schools. If you read the Alaska Constitution in a very broad way to say the Legislature can never give any benefit to families that choose private schools, you are making it so that a group of people who are exercising a fundamental liberty interest that is protected by the U.S. Constitution explicitly in case law  can never get benefits from the state in the same way that other groups can, and that’s unconstitutional under the U.S. Constitution.

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BY Lisa Buie

Lisa Buie is senior reporter for reimaginED. The daughter of a public school superintendent, she spent more than a dozen years as a reporter and bureau chief at the Tampa Bay Times before joining Shriners Hospitals for Children — Tampa, where she served for nearly five years as marketing and communications manager. She lives with her husband and their teenage son, who has benefited from education choice.