The news: About 23,000 families who rely on a unique Alaska’s education unique correspondence program that dates to before statehood will not have to scramble to find other educational options after the state supreme court rejected parts of a lawsuit against the state backed by the National Education Association’s Alaska affiliate. 

The ruling: The state’s high court announced its decision upholding the correspondence program, which gives families funding allotments they can use to access a variety of educational options, one day after hearing oral arguments. A lower court stay on the ruling had been due to expire on June 30, threatening to uproot students who rely on the program. The justices said a full order would soon follow.  

 What opponents say: A group of parents and teachers sued the state over the law establishing the allotment program, which gives participating families the ability to direct up to $4,500 of their child’s public education allocation to pay for approved goods and services. The plaintiffs argued that it amounted to a shadow voucher program that undermines the public school system by directing money elsewhere, including private and religious schools. 

 What the high court said: In an eight-page summary opinion, justices sided with the state’s hired lawyer who argued that the Superior Court incorrectly struck down the entire state statute governing the program as unconstitutional. Justices said the law could be preserved because “there are many constitutionally permissible uses” of the state allotment funds, which homeschool families may spend on various approved uses from public and private providers. The high court also directed the lower court to consider correspondence families’ arguments that the U.S. Constitution required the state to let them use the money on private school tuition.  

The plaintiffs in the case argued that the laws were unconstitutional because they allowed public money to be spent on private school tuition. The lower court judge agreed that the laws violated the state constitutional ban on spending public money “for the direct benefit of any religious or other private educational institution.”  

Catch up quick: The correspondence program began in 1939 to ensure that children in remote regions had access to education. Schools would send assignments by mail or float planes to students, who completed and returned them. Laws were updated in 2014 to create allotments that functioned as education savings accounts. The program operated without controversy until 2022 when the wife of state Attorney General Treg Taylor wrote a blog post with step-by-step instructions on using the funds to pay for private school tuition.  

What the high court left out: Justices didn’t decide the constitutionality of using allotment funds for private tuition. However, they did tell the plaintiffs that they picked the wrong defendant because the school districts, not the state Department of Education, are charged with approving vendors to be paid from the allotment program. The high court sent the case back to the lower court to decide that point.  

And the winners are: Besides the families who faced being left in the lurch as the new school year approached, Gov. Mike Dunleavy also claimed victory. An education choice champion, the former state senator sponsored legislation that created the allotment program. “This is a huge win for public education and a huge win for families,” Dunleavy said in a statement. “The Court got it right on this one. We were confident that the statutes were always constitutional. We thank the Alaska Supreme Court for their prompt decision in favor of the state.” 

What they’re saying: “Friday’s ruling is a win for the rights of parents to pick the education that best fits their children’s unique needs, but the fight is likely not over yet,” said Kirby Thomas West, an attorney for the Institute for Justice, which intervened to represent families and defend the program. “The many parents who use the program for non-tuition purposes can now rest assured that their use of the program is secure, but we are going to keep fighting to ensure the same happens for parents like our clients who use the program towards tuition costs.”  

Dunleavy called the decision “a huge win” for public education and families. “The Court got it right on this one. We were confident that the statutes were always constitutional. We thank the Alaska Supreme Court for their prompt decision in favor of the state.” 

The fight isn’t over: The plaintiff’s attorney said he thinks his clients will ultimately prevail. 

“There’s zero indication from the court that they remotely think spending correspondence funds at a private school is allowable,” attorney Scott Kendall told Alaska Public Media. “While this will cause some delay in the ultimate outcome, we remain very, very confident that that will be the outcome.” 

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, 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.