Alaska Deputy Attorney General Cori Mills released the Department of Law’s opinion affirming that parents can use funds from public homeschool programs to pay for services provided by private or religious schools when doing so supports their public correspondence education. The Alaska Constitution, however, does not allow for public allotments to pay “tuition” for full-time enrollment in private schools.

In short, the Dept. of Law’s opinion affirms the current practice in which many parents enroll their children in public homeschool programs and then use part of that money to pay for select classes and instruction at private and religious schools. Read the opinion here.

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.

“This was a difficult question – more difficult than I originally anticipated,” she said. “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.“

Mills said it is clear 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 the creation of a public correspondence allotment program that reimburses certain educational expenses for public school students enrolled in the correspondence program, she noted.

“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,” Mills said. “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.”

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 or religious 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.”

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