July 25, 2022

(Juneau, AK) Today, Alaska Deputy Attorney General Cori Mills released the Department of Law’s opinion on whether publicly funded correspondence schools can pay for services from private schools. The 19-page opinion found that public money may be spent for discrete materials and services from a private school when doing so supports a public correspondence education. But the Alaska Constitution does not permit public allotment funds to pay tuition for full-time enrollment.

Deputy Attorney General Mills released the opinion today to Acting Commissioner Heidi Teshner at the Department of Education and Early Development (405KB PDF).

The opinion also clarifies that none of the recent U.S. Supreme Court cases on education funding (2022’s Carson ex rel. O.C. v. Makin and2020’s Espinoza v. Montana Department of Revenue) change the analysis because Alaska’s constitution does not distinguish on the basis of religion but rather on the basis of private vs. public. “This conclusion is not changed by the U.S. Supreme Court’s recent decisions interpreting the federal Free Exercise Clause; nor are those decisions likely to invalidate Alaska’s restriction on using public correspondence allotments only for nonsectarian services and materials,” Mills wrote.

The opinion provides guidance on the types of spending that are clearly constitutional, clearly unconstitutional, and those that fall into a gray area.

Mills met with reporters online today to discuss the State’s opinion.

"This was a difficult question—more difficult than I originally anticipated. Fortunately, the Law department has some great legal minds that assisted in thinking through these issues. I also had great help from the framers themselves as I read through the Alaska Constitutional Convention minutes,” said Deputy Attorney General Mills. “What became clear is that the framers wanted a strong public education system open to all children, and they gave the legislature a lot of flexibility in determining what that system looked like. That flexibility includes creation of a public correspondence allotment program that reimburses certain educational expenses for public school students enrolled in the program. So, then the balancing act is determining whether you are really supplanting a public education with a private one with the backing of public dollars. Under that balancing, we know what you can’t do is pay for a student’s tuition to attend full-time private school. That leaves a lot of options open for school districts to allow students to fulfill their public education requirements," said Deputy Attorney General Mills.

In 2014, the legislature enacted a statute authorizing districts to “provide an annual student allotment to a parent or guardian of a student enrolled in the correspondence study program for the purpose of meeting instructional expenses for the student.” The Alaska Constitution prohibits spending public funds “for the direct benefit of…a private educational institution.” This led to the question of whether allotments can be spent to cover materials and services from private schools.

In the opinion’s short answer, Mills writes: “The allotment program supports students enrolled in public correspondence schools by permitting a limited amount of public money to be spent for materials and services from a private vendor to fulfill a student’s individual learning plan. Such spending does not, on its face, violate the Alaska Constitution’s prohibition against spending public funds for the direct benefit of a private educational institution. The nature of the private educational institution providing the materials or services does not impact this conclusion. Neither the Alaska Constitution nor the statutes make any distinction between religious or non-religious educational institutions and online or in-person education.”

However, the opinion continues with a clarification: “For example, the constitution does not permit supplanting public education with private school education by using public allotment funds to pay tuition for full-time enrollment in a private school.”

Mills hopes that this opinion provides useful guidance to school districts as they navigate how to implement the correspondence school allotment program and provide a public education to Alaska’s children.

Alaska Attorney General Treg Taylor recused himself from the opinion in May to prevent any potential for bias and to uphold the objective advice provided by the Department of Law.

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Department Media Contacts: Communications Director Patty Sullivan at patty.sullivan@alaska.gov or (907) 269-6368. Information Officer Sam Curtis at sam.curtis@alaska.gov or (907) 269-6379.