I just read, twice, the Alaska Supreme Court’s summary order in the allotment case against the Department of Education and Early Development, or DEED. I greatly respect our courts, and I thank our Alaska Constitution for our state’s judicial selection process. However, there are times when legal thought, case law and judicial writing leave citizens shaking their collective heads. This decision is clearly one example of how courts make a mess of plain meaning.
Alaska’s Constitution in Article VII, Section 1 states that “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.” Since Superior Court Judge Adolf Zeman’s decision in the case, most Alaskans are now aware that the Alaska Legislature has been awarding to the DEED, through our governor-approved appropriation process, significant funds to support the state’s correspondence school program, funds that are clearly being spent in many cases to support private school tuition.
It makes no sense, faced with this clear state appropriation process, that the Supreme Court remands the entire case back to the Superior Court because they do not find this action facially unconstitutional. It should make no difference to the justices that this money is funneled from the DEED to local school districts for distribution. Nor should it make any difference that some of this money may indeed be supporting legitimate home-based correspondence versus private school-based programs.
It is not municipal school district money, originating from local tax dollars, that fund these programs: It is state-appropriated dollars, enabled by the two statutes that Judge Zeman found unconstitutional. Even if one wanders down the “as applied” case law road, because there are some questions about how these dollars are spent by the school districts, the idea that these matters are sufficient to allow hundreds of thousands of dollars of unconstitutional state dollars to continue to be distributed for who knows how long, is appalling.
Now that this case has reminded us that it is constitutionally impermissible to expend state money to pay for private schools, but the justices are playing the worst type of judicial mumbo-jumbo and allowing these expenditures to continue unhindered for potentially at least the next year or so, how does the Alaska public recover the knowingly unconstitutional expenditures that will occur until this matter finally returns to the Supreme Court for the obvious finding? How does the public get recompense for this facial harm?
— Randall Burns
Anchorage
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