Legislature(1997 - 1998)
03/20/1997 03:45 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 158 - RIGHT TO ATTEND SCHOOL ON PART-TIME BASIS Number 0521 CHAIRMAN BUNDE announced the next item on agenda was HB 158,"An Act relating to attendance at a public school on a part-time basis." He stated that there were people here to testify and referred to additional letters of support included in the committee file as well as a proposed amendment. Number 0555 MACKENZIE SLATER, sixth grade student, stated she was home schooled and enrolled in the correspondence program of the Juneau school district. She attends the extended learning program, part time, at Harborview Elementary School. She enjoys going to the extended learning program because it is different from what she does at home and lets her use the resources which otherwise wouldn't be available to her. She felt that all children should be able to have access to public school resources. Her parents told her that part of their property taxes are used to run the schools. Therefore she felt that she should be able to go part-time to a public school whether or not she is enrolled in the Juneau school district. MS. SLATER stated that not only does she benefit from being able to attend a public school part-time, but she felt she contributed to the classes of which she was a part. She asked the committee to support this bill so that all children in Alaska will be guaranteed the right to access the best educational resources the state provides. Number 0623 PETER PARTNOU, Lawyer, Anchorage school district, testified next via teleconference from Anchorage. He presented the most recent ruling of the Alaska Supreme Court on this subject, Sheldon Jackson College versus the state of Alaska. This ruling would make it seem almost certain that HB 158 is unconstitutional. This case involved a subsidy at the college level and clarified that the courts have greater scrutiny for grades kindergarten through twelfth because it is compulsory education. MR. PARTNOU read a portion of the case, "The court knows that the minutes of the constitutional convention show that there was an effort to delete the provision of the constitution prohibiting (Indisc.) to provide educational institution." This proposal was rejected and the court noted that by rejecting the proposal, the convention made it clear that it wished the constitution to support and protect a strong system of public schools. The court noted that one of the delegates stated that in order to keep a strong public school we should not change money over to private schools. Delegate Coghill expressed the thought that the amount of tax dollars available to support public schools might be lessened if public school funds were used to aid the great many private schools in existence. MR. PARTNOU said, specifically looking at the provision that existed at that time, the court noted the class of people who benefited from the tuition grant program consisted only of private colleges and their students. He felt this would be the same situation which would occur as a result of HB 158. Students currently enrolled full-time in the public school system would not benefit, they would not get to go to private schools tuition free. The only people that would benefit would fall under those other categories. MR. PARTNOU added that the court went on to note that public funds, expended under that program, constituted nothing less than the subsidy of the education received by the students at his or her private college. They implicated their core concern with this direct benefit provision. The program may be motivated, as was stated in the preface of the statute, by the desire to help retain qualified students in Alaska. Such a laudable purpose cannot escape the prohibition of the constitution. Ultimately the program, which was almost indistinguishable from what this current legislation proposes, was declared by the courts to be unconstitutional. He stated the school district's concern about litigation from this bill. Number 0823 ED EARNHART testified next via teleconference from Anchorage. He stated his opposition to HB 158 for the same reasons presented by Mr. Partnou, as well as other reasons. Our public schools are confused enough as they accommodate every special group and individual. He wanted to avoid the administrative confusion as well as the violation of the intent of the state constitution. We have enough to do with public schools without messing around with odds and ends. Everyone who talks about this sort of thing has had serious questions about making more complications in the public schools. Number 0916 CAROL COMEAU, Representative, Anchorage School District, testified next via teleconference from Anchorage. She referred to Representative Dyson's statement, "for students who have been expelled from the public schools and are being home schooled in the interim, this option will allow them to gradually make the transition back into the public school system." She said this statement is of serious concern to them, particularly when it comes to student expulsion for weapons and firearms. The federal and state law, as well as the Anchorage school board policy, requires that a student who brings a firearm to school to be expelled for a period of up to one year, unless the superintendent chooses to mitigate that regulation or policy. Anchorage has been very consistent with this policy. The statement by Representative Dyson causes concern because they do not believe that students who have been expelled for firearm violations should be allowed to access the school's courses, even on a one or two course basis. MS. COMEAU stated there is also the issue of an administrative burden on a district the size of Anchorage when they are already having large class sizes and a difficulty having enough sections of the highest level courses. These are the courses, as well as labs and technology courses, that most home and private school students, they believed, would want to access. The district is trying to get certain class sizes down, so that students can have more hands-on experience. If three or four home or private school students or there was an influx of enrollment, it would keep driving the class size up and perhaps some of their very own students would not be able to take those courses. MS. COMEAU said the district likes the current regulation which allows a district to participate and offer classes to home and private school students, but they did not support the requirement that the district would have to provide classes for all home and private schools in the district. Number 1026 CHAIRMAN BUNDE asked if it was the district's contention that if someone was expelled and began home schooling, they could come into the school through the back door and attend classes part-time even though they have been expelled from full-time enrollment. Number 1040 MS. COMEAU answered, in reading the information that Representative Dyson distributed, this is a question that the district has about the bill. The superintendent is the only person who can re-instate a student who has been expelled. She felt HB 158 would cause some difficulties in determining the intent based on the distributed information. Number 1058 REPRESENTATIVE DYSON clarified that, in discussions he had with 15 or 18 school districts around the state, they were the ones that had told him they had used the part-time status as a transition back, at their option, at their pleasure, for students expelled because of inadequate deportment. All of those school districts he talked with, except Anchorage and maybe Homer, are successfully working with part-time students. His statement related districts who use the part-time status to their advantage. Number 1093 CHAIRMAN BUNDE verified that it was not Representative Dyson's intent that a person who has been expelled and not accepted back into the school system by that district or superintendent, would be allowed to attend school part-time under this bill. Number 1110 REPRESENTATIVE DYSON said, at the district's option, the school could have the student back full-time, part-time or not at all. Number 1114 REPRESENTATIVE BRICE stated that HB 158 is specific in addressing this issue. He did not feel there was a lot of ambiguity in Section B(1) where it states, "A governing body is not required to allow part-time enrollment if (1) the enrollment would be denied even if the enrollee were a full-time student". It does allow a little bit of flexibility for the governing body to use in bringing students in, but does not require it. It gives clear direction that the governing body can say no. Number 1172 REPRESENTATIVE KEMPLEN made a motion to adopt Amendment 1. Number 1195 REPRESENTATIVE DYSON objected for purposes of discussion. Number 1204 REPRESENTATIVE KEMPLEN referred to page 1, line 6, after "who" the amendment would delete "is also enrolled at a private school". Number 1210 CHAIRMAN BUNDE clarified that it was only his intent to include those students who are home schooled or are a correspondence student. Number 1236 REPRESENTATIVE DYSON asked if the intention was to allow discrimination against those students or to get the state out of the proposed constitutional binds. Number 1245 REPRESENTATIVE KEMPLEN answered it was to avoid the constitution bind, this was a significant concern. Number 1249 MIKE FORD, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, referred to the discussion on Sheldon Jackson v. State of Alaska. This is the one case which illustrates what the court means when they say direct benefit to a private school. It is important to note that not everything the state does, which benefits a private school, is prohibited even when it is a direct benefit. The court used some examples. One of these examples was where a private school catches fire. If this happens then the fire department responds, this is a direct benefit to a private school. It is a public service. The fact that it is a direct benefit does not mean it is prohibited. It is benefit which is available to everyone in that district. MR. FORD said HB 158 is similar to the court's example in the sense that our system of public schools are open to everyone. The fact that you attend a private school does not mean that you lose your status, under our constitutional provision providing public school access to everyone. It was possible that the courts could find this to be a direct benefit, but he thought that, if you look at the criteria the court used, HB 158 would not violate the constitutional provision. Number 1317 REPRESENTATIVE DYSON asked for an explanation of the circumstances and the reasoning behind the court case. Number 1328 MR. FORD answered that this case is a good illustration of what a direct benefit is; money going to people in the private sector. He stated that HB 158 does not have money going to people in the private sector. Sheldon Jackson had equalized the difference between tuition at a private college and at a public college. There was an argument that because it goes to the person and not to the school, that it wasn't a direct benefit. The court disagreed with this argument; it was a direct benefit, that the person was just a conduit. This bill, HB 158, does not have money going to a private student. There may be a benefit to the private school in the sense that their programs are enhanced because they mesh with the public programs. He thought this was the kind of indirect benefit which is allowed under the constitution. Number 1364 SHARYLEE ZACHARY testified next via teleconference from Petersburg. She and her husband home school their daughters for a variety of reasons; choice of curriculum, the class size in public schools, and because of current situations facing children. Her tax dollars go to help support the public school system so her family ends up paying twice. When her family went in to use the elementary school library, they were told that it was against policy for a home schooler to check out books and that home schoolers were not even allowed to sit in the library and read the public school materials. For several years now, she has been told from other home schooling families, that classes are not allowed to be taken at the schools unless their children attend full-time. She mentioned that her children are also barred from extracurricular activities, even when they offered to pay an extra fees for them. MS. ZACHARY contacted the school district office to request a copy of the school board policies, regarding home schoolers, to find out what was officially allowed and not allowed. She was told that there are no written policies, yet the policy argument is used when they ask to do something. She referred to an example where policy was set aside in order to allow two boys to join the wrestling team. The size of the community does not allow access to certain things outside of the public schools such as chemistry labs, foreign languages or band class. She questioned why her tax dollars went to provide those things for other children, why her children couldn't use them as well. Her family is doing their part by not overloading the public school system and are trying not to make waves. Number 1508 REPRESENTATIVE DYSON stated that it appeared that some public schools were accommodating part-time students since the state provided public education. He asked if Mr. Ford was aware of any lawsuits brought against any of the districts for this activity. MR. FORD was not aware of any litigation over the question of public school districts allowing privately schooled students to attend part-time. It was a practice that has gone on for a number of years and is something that, under existing administrative code regulation, is up to the school district. They do allow this in Juneau. He thought Anchorage was the only district which didn't allow it. Number 1546 REPRESENTATIVE VEZEY asked where anyone got the authority to write a regulation that prohibits a citizen of the state from going to public school. He did not feel we had a constitutional right to write such a statute. He asked where they got the right to write such an administrative code. Number 1563 MR. FORD commented that this was an interesting legal question. The regulation does not say that you can't go, it says that the district may allow you to go. It doesn't actually say that privately schooled students may not enroll part-time, it leaves it up to the districts. He assumed that Anchorage has a policy that says they do not allow them to attend. It surprised him that someone in Anchorage has not challenged this regulation. Number 1589 REPRESENTATIVE KEMPLEN presented a scenario of a school and a small private school which operates next door. The private school does not have the resources for some major expense items and their students are sent over to the larger school in order to take advantage of the pool, the vocational lab, the physics lab and the computer multi-media center. He asked if this public school was providing a direct benefit to that smaller school. Number 1657 MR. FORD did not believe, under the constitution as interpreted by the court, that this would be a direct benefit. Number 1674 REPRESENTATIVE KEMPLEN asked Mr. Partnou's interpretation. Number 1676 MR. PARTNOU disagreed with Mr. Ford's interpretation. The Sheldon Jackson case talks about some public money being spent which directly benefits a private institution such as fire protection, but what the court says, among other things, is that this direct benefit is not something which adds to the educational function. This is something where it doesn't matter whether it is your house burning down, or a factory burning down or whatever, it is available fire protection for everyone. The scenario is exactly what the Sheldon Jackson case was talking about; allowing a private institution to supplement its program by having those things which it can't afford to offer or which it doesn't have a large enough student body to offer. A private school could increase its enrollment by being able to offer those opportunities through the public schools. This is precisely what the supreme court determined, in Sheldon Jackson, to be unconstitutional. MR. PARTNOU explained that the bill creates an entanglement problem in terms of trying to figure out why particular kids are coming to the public school. Are they coming from the private school, from home schools, how do you know if they have a full-time program elsewhere and whether or not they are complying with the compulsory education law. There are a whole rack of administrative problems which would require the public schools to become directly and deeply involved in the private schools to see if those things were going on. This creates an entanglement problem and is also unconstitutional under both state and federal law. Number 1750 CHAIRMAN BUNDE did not feel this problem would be solved in this committee and it would probably take more legal minds and the courts to solve it. Number 1769 REPRESENTATIVE VEZEY asked why the authority, to not let these students in school, was not repealed. Number 1781 MR. FORD felt it was the sponsor's intent to require governing bodies to allow part-time enrollment. If we simply annulled the regulation, then you are left with district policy which in Anchorage would not allow this. Number 1791 REPRESENTATIVE VEZEY stated that our constitution was very firm in that all persons in the state of Alaska had right to access public education. Number 1800 CHAIRMAN BUNDE felt there was a difference between going to school and education. You don't have to build a school for every two students. They do have a right to home school. Number 1808 CHAIRMAN GREEN clarified that if a portion of a bill is declared unconstitutional, that portion is deleted but the rest of the bill is alright. He referred to paragraph (a) and asked, if by chance, "enrolled at a private school" were found unconstitutional would that negate that part or this whole section. Number 1837 MR. FORD verified that Representative Green was referring is the severability clause. This clause, if the court can sever the unconstitutional portion of the legislation, will be omitted and the other provisions will be left intact. In this case, he suspected that the court could sever the private school portion. This could be found to be unconstitutional without affecting the correspondence or home school students. Number 1856 A roll call vote was taken on Amendment 1. Representatives Dyson, Kemplen, Brice and Bunde voted yea. Representatives Green and Vezey voted nay. Representative Porter was absent for the vote. Amendment 1 was adopted. Number 1886 REPRESENTATIVE DYSON made a motion to move CSHB 158(HES) with individual recommendations and zero fiscal note. Number 1912 CHAIRMAN GREEN objected to the motion. He felt the change in CSHB 158(HES) took away from the intent. He questioned changing the bill because of constitutionality concerns and referred to Mr. Ford's explanation of what would happen if it was found unconstitutional. He felt this issue could be prejudiced. Number 1941 CHAIRMAN BUNDE took the chair's prerogative and held CSHB 158(HES) until Tuesday, March 25, 1997. TAPE 97-22, SIDE A
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