Legislature(2013 - 2014)BELTZ 105 (TSBldg)
03/22/2013 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing: Select Committee on Legislative Ethics | |
| Confirmation Hearing: Commission on Judicial Conduct | |
| SJR9 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | SB 72 | TELECONFERENCED | |
| + | SJR 9 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 22, 2013
1:37 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Fred Dyson
Senator Donald Olson
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Lesil McGuire, Vice Chair
COMMITTEE CALENDAR
CONFIRMATION HEARINGS
Select Committee on Legislative Ethics
JANIE LEASK, Alternate
- CONFIRMATION ADVANCED
Commission on Judicial Conduct
JAMES "CHRIS" BROWN
- CONFIRMATION ADVANCED
SENATE JOINT RESOLUTION NO. 9
Proposing amendments to the Constitution of the State of Alaska
relating to state aid for education.
- HEARD & HELD
SENATE BILL NO. 72
"An Act clarifying that the Alaska Bar Association is an agency
for purposes of investigations by the ombudsman; relating to
compensation of the ombudsman and to employment of staff by the
ombudsman under personal service contracts; providing that
certain records of communications between the ombudsman and an
agency are not public records; relating to disclosure by an
agency to the ombudsman of communications subject to attorney-
client and attorney work-product privileges; relating to
informal and formal reports of opinions and recommendations
issued by the ombudsman; relating to the privilege of the
ombudsman not to testify and creating a privilege under which
the ombudsman is not required to disclose certain documents;
relating to procedures for procurement by the ombudsman;
relating to the definition of 'agency' for purposes of the
Ombudsman Act and providing jurisdiction of the ombudsman over
persons providing certain services to the state by contract; and
amending Rules 501 and 503, Alaska Rules of Evidence."
-SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SJR 9
SHORT TITLE: CONST. AM: EDUCATION FUNDING
SPONSOR(s): SENATOR(s) DUNLEAVY
02/13/13 (S) READ THE FIRST TIME - REFERRALS
02/13/13 (S) EDC, JUD
02/15/13 (S) EDC REFERRAL REMOVED
02/15/13 (S) FIN REFERRAL ADDED AFTER JUD
02/15/13 (S) UPHOLD CHANGE TO REFERRALS Y11 N4 E4 A1
03/13/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/13/13 (S) Scheduled But Not Heard
03/15/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/15/13 (S) Heard & Held
03/15/13 (S) MINUTE(JUD)
03/18/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/18/13 (S) Heard & Held
03/18/13 (S) MINUTE(JUD)
03/20/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/20/13 (S) -- MEETING CANCELED --
03/22/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
JANIE LEASK, Appointee (alternate)
Select Committee on Legislative Ethics
Anchorage, Alaska
POSITION STATEMENT: Testified during the confirmation hearing.
JAMES "CHRIS" BROWN, appointee
Commission on Judicial Conduct
Anchorage, Alaska
POSITION STATEMENT: Testified during the confirmation hearing.
DIANE RAVITCH, Research Professor
New York University
New York, New York
POSITION STATEMENT: Testified in opposition to SJR 9.
MIKE HANLEY, Commissioner
Department of Education and Early Development (DEED)
Juneau, Alaska
POSITION STATEMENT: Answered questions related to SJR 9.
L. MARTIN NUSSBAUM, Attorney
Rothgerber Johnson & Lyons LLP
Colorado Springs, Colorado
POSITION STATEMENT: Provided supporting information for SJR 9.
ACTION NARRATIVE
1:37:12 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:37 p.m. Present at the call to
order were Senators Dyson, Olson, and Chair Coghill. Senator
Wielechowski arrived soon thereafter.
^Confirmation Hearing: Select Committee on Legislative Ethics
CONFIRMATION HEARINGS
Select Committee on Legislative Ethics
1:37:37 PM
CHAIR COGHILL announced the first order of business would be
confirmation hearings. He asked Ms. Leask to introduce herself
and discuss the position she was appointed to.
JANIE LEASK, appointee, Select Committee on Legislative Ethics,
introduced herself and explained that her application was as an
alternate member of the Select Committee on Legislative Ethics.
CHAIR COGHILL asked if she had participated in an Ethics
Committee process.
MS. LEASK answered no.
CHAIR COGHILL asked if she volunteered to serve or if somebody
suggested her name.
MS. LEASK explained that somebody put her name forward and she
was very interested in serving because she believes in public
service.
CHAIR COGHILL commented that her resume showed she has good
experience in the business field and has worked with a diversity
of people.
1:39:43 PM
SENATOR DYSON thanked Ms. Leask for her service.
CHAIR COGHILL thanked Ms. Leask for her service and noted that
he would ask for a motion to forward her name after the
committee heard from the next appointee.
1:40:31 PM
SENATOR WIELECHOWSKI joined the committee.
^Confirmation Hearing: Commission on Judicial Conduct
Commission on Judicial Conduct
1:40:47 PM
CHAIR COGHILL stated that the next appointment was Chris Brown
to the Commission on Judicial Conduct.
1:41:05 PM
JAMES "CHRIS" BROWN, appointee, Commission on Judicial Conduct,
said he looks forward to serving a second term on the Commission
on Judicial Conduct, should he be confirmed. He believes he
offered value in the last four years and found it enjoyable to
work with the officers of the court. It has been encouraging to
see how well the process can work, he said.
1:41:55 PM
SENATOR OLSON commented that Mr. Brown's bachelor's degree in
electrical engineering was a strange fit with the Commission on
Judicial Conduct.
MR. BROWN responded that he also has a business degree and
jokingly refers to himself as a recovering engineer.
CHAIR COGHILL thanked Mr. Brown for serving, and asked for a
motion to forward both names.
1:42:57 PM
SENATOR DYSON moved to forward the name James Brown to serve on
the Commission on Judicial Conduct and the name Janie Leask to
serve as an alternate on the Select Committee on Legislative
Ethics to the full body for consideration. He reminded members
that signing the reports regarding appointments to boards and
commissions in no way reflects individual members' approval or
disapproval of the appointees, and that the nominations are
merely forwarded to the full legislature for confirmation or
rejection.
CHAIR COGHILL announced that the names would be forwarded to the
full body for consideration.
SJR 9-CONST. AM: EDUCATION FUNDING
1:43:38 PM
CHAIR COGHILL announced the consideration of SJR 9.
1:44:11 PM
DIANE RAVITCH, Research Professor, New York University, stated
that she has an extensive background as a historian of
education, and her professional credentials illustrate that she
comes to the issues with a bipartisan perspective.
DR. RAVITCH said that she understands why some people want
vouchers, but based on her own study she believes that they will
undermine and destroy one of the essential institutions of a
democratic society, the public education system. Vouchers are
often called opportunity scholarships, but they're not
scholarships. They're a way to use public money to pay for
religious and private education, but they don't work.
She related that she heard from a colleague who participated in
a conference at the Royal Swedish Academy of Sciences to discuss
what vouchers had accomplished since Sweden adopted them in
1992. Starting in 1995 and up to the present all the
international tests show that scores in reading, mathematics,
and science have dropped. Sweden is also concerned that over
this same period the privatization brought on by vouchers has
increased segregation of students by socio economic status and
ethnicity. The additional concern is that large profits are
being amassed by independent schools using and consuming public
funds.
1:47:13 PM
DR. RAVITCH warned that if vouchers are adopted this country
will face the same problems that Sweden faces. She highlighted
that several states have already adopted vouchers, but none were
adopted by a vote of the people. In fact, they've been turned
down every time they've been put to a vote in this country. The
most recent example is Florida where voters turned vouchers down
58:42. Milwaukee, Cleveland, and the District of Columbia are
the only urban districts that currently have vouchers and those
are three of the lowest performing districts in the nation.
Milwaukee has had vouchers and charters for 22 years and the
black kids there are performing on the same level as black kids
in Mississippi.
She noted that some supporters tout higher graduation rates in
voucher schools even though test scores may be low. However,
what they don't mention is that the attrition rate is so high
that the graduation rate is meaningless. A supporter evaluated
the voucher program in Milwaukee and found that 75 percent of
the kids who started in ninth grade had dropped out before the
end of twelfth grade. She noted that another form of voucher
that has recently become popular is the voucher for children
with special needs. This started in Florida under Governor Jeb
Bush with the McKay Scholarship Program. An expose of this
program showed that the state has spent over $1 billion for
special education students to go to schools that are run by
people without educational credentials, have no curriculum, and
have no certified teachers.
DR. RAVITCH said the evidence clearly shows that children are
not learning more as a result of vouchers. Another factor to
consider is that the great social movements of the past half
century including racial desegregation, gender equity, and the
inclusion of students with disabilities all happened through
public education, not through private schools or voucher
schools.
DR. RAVITCH relayed that in states that are considering vouchers
she is seeing bipartisan pushback, primarily from poor
districts. In Texas the opposition to vouchers is coming from
Republicans who are concerned that vouchers will destroy local
public schools. In Wisconsin Republicans from rural districts
are suggesting the people should vote on whether or not to
expand the voucher program, because they know the voters oppose
the idea.
DR. RAVITCH urged extreme caution in moving toward a voucher
program. The highest performing nations in the world such as
Finland, Singapore, and Japan have strong public education
systems where everyone works together in the best interest of
the children. Each person has the right and privilege to spend
their own money to go to a private or religious school, but they
shouldn't ask the government to pay for it.
1:52:15 PM
SENATOR DYSON asked if she was familiar with the Alaska
Constitution.
DR. RAVITCH said no.
SENATOR DYSON asked if she had studied education in Alaska.
DR. RAVITCH responded that she assumes that Alaska has the same
kinds of public schools as most states, but she didn't know if
it had a Blaine Amendment. She noted that most states have that
language in their constitution and the effort to establish
vouchers usually involves a constitutional amendment to remove
it.
SENATOR DYSON commented that people who don't support vouchers
seem to think that the majority of parents can't be trusted to
make wise decisions about where to place their kids in the
educational system.
DR. RAVITCH responded that it would really demonstrate trust in
parents if they were allowed to vote on vouchers. She reiterated
that in state after state voters have turned down vouchers.
SENATOR DYSON highlighted that a recent poll in Alaska shows
that 56 percent of the respondents approve parents having some
kind of choice. He added that he was uncomfortable with
government having control over virtually all education and
thereby being able to influence children's thinking.
DR. RAVITCH said she had been involved in this field since the
late 1960s and had seen nothing to indicate that the government
was making an effort to teach children to have a particular
point of view. She opined that with vouchers kids are more
likely to go to schools that teach a particular point of view,
whereas in a public school the emphasis is on both sides of the
question. The latter makes for an intelligent citizenry, she
said.
SENATOR DYSON noted that administrators in his school district
have said that most parents don't want the schools to teach
their kids values, but he believes that everyone wants their
kids to be taught some core values.
DR. RAVITCH offered her belief that teaching values is a family
responsibility and the role of the public school is to teach
children to think seriously about the consequences of their
behavior.
SENATOR DYSON said the only reason he disagrees is that he
believes that truth and values are transcendent and true in all
places, at all times, for all people.
1:58:13 PM
CHAIR COGHILL asked Dr. Ravitch to submit her testimony in
writing.
DR. RAVITCH agreed.
2:00:31 PM
MIKE HANLEY, Commissioner, Department of Education and Early
Development (DEED), offered to answer questions.
SENATOR WIELECHOWSKI asked how many children in Alaska attend
private schools.
COMMISSIONER HANLEY estimated the number was between 7,000 and
8,000.
SENATOR WIELECHOWSKI asked if the average amount for the
foundation formula was $6,000/student.
COMMISSIONER HANLEY affirmed that was the base student
allocation; it didn't include the cost differentials.
SENATOR WIELECHOWSKI calculated that $6,000 times 7,000 students
amounted to $42 million. He asked if removing $42 million from
the budget would have an impact on the public education system.
COMMISSIONER HANLEY responded that the legislature is fully
responsible for funding education and determining where the
funds go, but [$42 million] would fund more students.
SENATOR WIELECHOWSKI asked if DEED had analyzed the impact it
would have on the public education system to fully fund all the
students in private schools.
COMMISSIONER HANLEY said no; the resolution deals with a
constitutional amendment rather than a funding component, so
there was no fiscal analysis for the department to do.
SENATOR WIELECHOWSKI asked if he had an opinion about passing
the resolution.
2:03:09 PM
COMMISSIONER HANLEY said yes; the state has the responsibility
to offer an appropriate education for students in the way that
will provide the best outcomes. He opined that providing choice
was a valuable way to do that and he supported the resolution.
SENATOR WIELECHOWSKI asked if he would run an analysis before
the committee voted on the resolution to show what the impact of
the cuts would be.
COMMISSIONER HANLEY responded that the simplest math would be
the number of private school students multiplied by the BSA. He
didn't necessarily agree with the perception that there would be
a deficit, but funding education was the purview of the
legislature.
2:04:47 PM
SENATOR WIELECHOWSKI asked if he had a sense of the number of
students in the public school system who would take advantage of
a voucher program.
COMMISSIONER HANLEY declined to venture a guess.
CHAIR COGHILL said it's a legitimate question and he, too, would
be interested in the answer.
2:06:33 PM
SENATOR WIELECHOWSKI asked if he or the administration would
support a proposal to cut $42 million from the education budget.
COMMISSIONER HANLEY acknowledged that the department would see
significant negative impacts if $42 million was cut from the
education budget.
SENATOR WIELECHOWSKI asked what the negative impacts would be.
COMMISSIONER HANLEY replied that it would probably fall to the
formula funds.
2:07:56 PM
SENATOR OLSON clarified that the Finance Committee makes the
determination about funding for education. He then asked where
the private schools were located because they weren't in rural
Alaska.
COMMISSIONER HANLEY acknowledged that they were largely in the
urban areas.
SENATOR OLSON asked how many of the private schools are not
affiliated with a church.
COMMISSIONER HANLEY said he didn't know.
CHAIR COGHILL said it's a valid question.
SENATOR WIELECHOWSKI asked the commissioner to talk about how
village school systems work and whether they are closed if the
student population drops below a certain number.
COMMISSIONER HANLEY explained that there is a funding formula to
provide a school in communities that have at least ten students.
If the student population subsequently drops below ten the state
reduces the funding. When that occurs, local school boards often
decide that the most feasible response is to close the school.
SENATOR WIELECHOWSKI asked if the state would have a way to
ensure that there was no discrimination if there was a voucher
system.
COMMISSIONER HANLEY opined that the legislature would establish
an equal-opportunity/nondiscrimination provision in the voucher
statute.
SENATOR WIELECHOWSKI asked if private school students would have
to meet standardized testing and graduation requirements.
COMMISSIONER HANLEY replied it would be up the legislature to
develop the voucher.
SENATOR WIELECHOWSKI asked if he would encourage meeting those
requirements.
COMMISSIONER HANLEY said he believes that the expectation is
that there would be a public outcome if public funds are
expended. The state's constitutional responsibility is to
establish and maintain a system of public education and the
courts have determined that the department is responsible for
providing oversight and support, setting standards, providing
assessments toward those standards, and providing adequate
funding.
CHAIR COGHILL described the discussion of standards versus
outcomes as one of the main questions.
2:13:38 PM
SENATOR WIELECHOWSKI asked Commissioner Hanley if he envisions
increased competition in rural Alaska if the voucher program
evolves.
COMMISSIONER HANLEY said he would anticipate additional
opportunities for students to take courses or enroll in schools
online.
SENATOR DYSON encouraged the committee not to stray from the
topic of a constitutional amendment and the proposal to at least
clarify what is already in the constitution. Responding to
Senator Olson's question, he noted that in the past Alaska had
outstanding private schools that were largely run by local
people.
CHAIR COGHILL characterized the discussion as appropriate.
2:17:22 PM
SENATOR WIELECHOWSKI said it was his understanding that this
committee would discuss the educational impacts since the
education referral was removed. If that's no longer the case,
the education referral should be added back. He asked the chair
his intention.
CHAIR COGHILL stated that it was his intention to have a full
discussion on the constitutional amendment and to also allow a
broad discussion on the potential education policy.
SENATOR DYSON asked the commissioner if he knew the
administration's position on putting this constitutional
amendment on the ballot.
COMMISSIONER HANLEY said the governor has been clear in his
support for giving students additional choices and for allowing
Alaskans to make the decision.
2:18:52 PM
SENATOR DYSON asked if DEED has partnerships with private
educational service providers and, if so, who they are.
COMMISSIONER HANLEY responded that the primary partnership is
the Pre-Kindergarten Program. He explained that DEED provides
funding to districts that partner with nonprofits like RurAL CAP
to provide the services. Additional partnerships include Parents
As Teachers and Best Beginnings. The latter isn't quite the same
as an educational institution, but public funds go to it in
support of young children.
SENATOR DYSON asked if some of the apprenticeship programs or
vocational schools also receive public monies.
COMMISSIONER HANLEY explained that decisions about those sorts
of programs are made at the local level, the funds don't come
directly from DEED.
SENATOR DYSON asked if Slingerland schools are private.
COMMISSIONER HANLEY replied that both the Anchorage School
District and the private Gateway School in the past used the
Slingerland principles and approach to teaching, but he wasn't
aware of any currently.
SENATOR DYSON noted that Vic Fischer said that the
public/private partnerships in education were unconstitutional,
but that they'd never been challenged because everyone likes
them. He asked Commissioner Hanley if he could name any other
public/private partnerships in education.
COMMISSIONER HANLEY named the Sylvan tutoring programs and added
that a private vendor might be used to access a particular
course for physical education or art education.
SENATOR DYSON asked where he stood on the debate about public
money being used to the benefit of a private or religious
organization in the specific circumstance of a charter school
renting a church building for classrooms.
COMMISSIONER HANLEY replied that DEED relies heavily on its
legal counsel to make sure it follows the law, and it's an
ongoing challenge to find that line.
2:23:48 PM
L. MARTIN NUSSBAUM, Attorney, Rothgerber Johnson & Lyons LLP,
Colorado Springs, CO, said he was testifying on behalf of the
Alaska Policy Forum. He stated that he practices religious
liberty and religious freedom law, and thus is well acquainted
with constitutional issues, including those related to the
Blaine Amendment. He noted that he submitted an outline of his
testimony.
He reviewed the history of the Blaine Amendment movement
starting in 1874. This amendment forbade the use of public funds
in education for "sectarian" schools. The legislative history is
very clear that "sectarian" was code for Catholic. The bill
failed to pass, but the Blaine Amendment became an unofficial
condition for statehood. The conditions worked out in different
ways from state to state, but the hallmark is that no public
funds or support goes to sectarian schools. He noted that a
majority of the members of the U.S. Supreme Court have indicated
that the Blaine Amendment was "born of bigotry." He said he
believes that the core Blaine Amendment is likely
unconstitutional under the equal protection, free exercise
clauses and perhaps the fundamental right of parents to direct
the educational upbringing of their children.
2:29:29 PM
MR. NUSSBAUM reviewed the Blaine Amendment as it pertains to
Alaska. The Territorial Organic Act of 1912, which Alaska
operated under until it became a state, says there shall be no
use of public monies for sectarian, denominational, or private
schools. When Congress passed the Alaska Statehood Act of 1958,
it contained a pure Blaine provision in Section 6(j). Alaskan
legislative bodies handled it in various ways.
The Constitutional Convention adopted art. VII, sec. 1, of the
Alaska Constitution, which says no public funds shall be used
for the direct aid [of any religious or other private
educational institution]. The debates make it very clear that
consideration was given to including a prohibition of indirect
aid. The anti-Catholic focus in the original Blaine Amendment
was rejected.
MR. NUSSBAUM directed attention to the table in Appendix A of
his testimony. It contains instances of Alaska legislative
bodies and school districts that passed educational provisions
that resisted Blaine. The Bus Transportation Act of 1955
permitted buses taking students to public schools to also
transport students going to private schools. That territorial
legislature supported indirect aid [to private schools] by its
action. The Constitutional Convention essentially says no direct
aid, but indirect aid is okay. He noted that is more restrictive
than federal constitutional law, but less restrictive than
Blaine. The legislature in 1968 passed the Tuition Grant Act
that said indirect aid was okay. That is the legislation at
issue in the Sheldon Jackson case. The legislature in 2004
passed the AlaskaAdvantage Education Grant, which is a form of
indirect aid. He offered his understanding that more than 100
grants have been issued between 2009 and 2013 to private
organizations for programs and facilities related to education
or training. Those direct grants are a statement of the
legislature's attitude about direct aid. The legislature in 2011
approved the Alaska Performance Scholarship, which is a form of
indirect aid. In 2012-2013, DEED school districts approved a mix
of 122 for profit and nonprofit contracts with supplemental
educational service providers. This is a form of direct aid. He
clarified that the term "aid" in this context is hiring
organizations to provide services, not grants to give someone
money. Finally, the legislature in 2013 approved 41 grants to
private organizations for workforce development. That is
probably a form of both direct and indirect aid.
MR. NUSSBAUM stated that in his view the representative bodies
in Alaska have consistently rejected Blaine and instead have
chosen to work together with public and private entities to best
serve the needs of Alaskan students.
2:36:54 PM
MR. NUSSBAUM turned attention to Matthews v. Quinton, 362 P.2d
932 (Alaska 1961) that revived the "Blaine impulse." The Alaska
Supreme Court struck down the Bus Transportation Act of 1955,
and by implication said it would not permit direct or indirect
aid. Given that the state constitution specifically says that
direct aid is permissible, he said he and others believe that
was a legally erroneous decision. He suggested it was worth the
committee's time to read both the principle decision and the
dissent by Justice Dimond.
He noted that Sheldon Jackson College v. State, 599 P.2d 127
(Alaska 1979) was the second Alaska Supreme Court case on this
subject, but it curiously did not mention the precedent setting
Mathews decision. An explanation was provided in footnote 20.
The 1979 court said it declined to rely on the 1961 Mathews
decision and thus had no occasion to overrule or reaffirm it.
The court did acknowledge there was a substantial question as to
Mathews' continuing vitality in light of the analysis employed
in the Sheldon Jackson decision. That footnote did everything
but overrule the Mathews decision, and was such a strong
indicator that soon after the Alaska attorney general issued an
opinion that the Mathews decision essentially had no effect on
the use of public funds for school busses.
MR. NUSSBAUM asked if funding is currently provided for school
buses to take [both public and private school students] to
school.
CHAIR COGHILL said yes.
2:41:01 PM
MR. NUSSBAUM reviewed the errors in the Mathews decision. First,
the court redefined "direct" to mean "indirect." It also
disagreed with the territorial legislature's recitation of why
it passed the bus bill and ignored the rich legislative
discussion of this during the Constitutional Convention. Next,
the court found that the 1955 law violated the Organic Act, even
though that law has no legal effect once a territory becomes a
state. There was also a U.S. Supreme Court decision on busing
that the Alaska Supreme Court was aware of in the Mathews
decision, but didn't defer to it.
He explained that the 1979 Sheldon Jackson case was about a
$2,500 scholarship for students attending private colleges. The
court struck this down holding that it constituted direct aid
and thereby violated art. VII, sec. 1, of the Alaska
Constitution. He characterized the decision as legally erroneous
and described some of the errors.
The core of the court's analysis relies on the overturned U.S.
Supreme Court precedents Wolman v. Walter, 433 U.S. (1977) and
Meek v. Pittinger, 421 U.S. (1975). Both cases involve aid to
religious schools and have constitutional issues involving the
establishment clause that don't apply to scholarships to any
kind of school. The analysis also relies on Mitchell v. Helms,
530 U.S. 793 (2000), which overrules the previous two decisions.
The opinion dismisses the salutary effect of having parents
direct the economic benefit and says using the student as an
intermediary has no cleansing effect. This does not comport with
Mueller v. Allen, 463 U.S. 388, 399 (1983) and a number of other
U.S. Supreme Court decisions. The Mueller case involved a
Minnesota statute that provided tuition, textbook, and
transportation expense tax credits for students going to public
or private schools. He read an excerpt of that decision as
follows:
[B]y channeling whatever assistance it may provide to
parochial schools through individual parents,
Minnesota has reduced the Establishment Clause
objections... It is true, of course, that financial
assistance provided to parents ultimately has an
economic effect comparable to that of aid given
directly to the schools attended by their children. It
is also true, however, that under Minnesota's
arrangement public funds become available only as a
result of numerous, private choices of individual
parents of school-age children. .... Where, as here,
aid to parochial schools is available only as a result
of decisions of individual parents no 'imprimatur of
state approval'...can be deemed to have been conferred
on any particular religion, or religion generally.
MR. NUSSBAUM described a voucher program that is only eligible
to Lutheran schools and students as an example of picking an
ecclesiastical winner, which would not be permitted. He opined
that having the parents decide where to send their children to
school inoculates the state from that problem. For the Sheldon
court to say this doesn't matter derogates about a dozen U.S.
Supreme Court decisions that give great significance to the fact
that the aid was indirect. He opined that the Alaska Supreme
Court has consistently overridden legislative choices and tried
to revise the effect of Blaine, the result of which is an
inconsistent, Alaska-specific jurisprudence, particularly with
regard to whether a benefit is direct or indirect.
2:49:46 PM
MR. NUSSBAUM concluded his comments stating that SJR 9 appears
to be an excellent choice for resolving the following questions:
First is whether the legislative branch really is independent of
the judicial branch in light of the two court decisions. The
second is shall the legislature preserve the historical choices
that they and the school boards have made with regard to
students' educational needs. The third question is shall the
legislature preserve its prerogative to decide what is best for
the students of Alaska and their educational needs.
If SJR 9 passes and the legislature decides in a future session
to look at some type of parochial aid, it would still have to
comply with the compulsory education requirements and the
Establishment Clause. A number of U.S. Supreme Court decisions
provide guidance in this area so future legislatures could feel
comfortable that what they are passing will pass constitutional
muster.
2:53:54 PM
SENATOR WIELECHOWSKI commented that he's seen judges get it
wrong, but it's a system of checks and balances and the Supreme
Court has the final say. He then asked if he would comment on a
western New England law review article that argued that if the
U.S. Supreme Court were to find the Blaine Amendment
unconstitutional, a variety of other religious laws, such as
those targeting Mormon polygamy, would be found
unconstitutional.
MR. NUSSBAUM said he didn't see a link because that type of case
would be decided on a different type of analysis. For example,
United States v. Reynolds involved the criminal prosecution of a
man in a plural marriage. The man challenged under the Free
Exercise Clause and the court turned him down. That is a Free
Exercise analysis, whereas these types of cases are decided
primarily on Establishment Clause analysis. He clarified that he
was not saying that art. VII, sec. 1, of the Alaska
Constitutional is unconstitutional. He believes that the Alaska
Constitutional Convention rejected much of Blaine, and that the
Alaska Supreme Court reinserted many of the Blaine values
through its decisions.
He said he respectfully takes issue with the comment that the
Supreme Court has final word, because the legislature does not
have to be silent when the court speaks. He restated his view
that the Alaska Supreme Court undid what the Constitutional
Convention, legislatures, and school boards intended. SJR 9
helps address that.
CHAIR COGHILL stated that the people have the right to amend
their constitution. He quoted the following excerpt from the
constitution:
All political power is inherent in the people. All
government originates with the people, is founded upon
their will only, and is instituted solely for the good
of the people as a whole.
CHAIR COGHILL held SJR 9 in committee.
2:58:25 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 2:58 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Letter Alaska Policy Forum SJR 9.pdf |
SJUD 3/22/2013 1:30:00 PM |
SJR 9 |
| Letter Linda Hulen SJR 9.pdf |
SJUD 3/22/2013 1:30:00 PM |
SJR 9 |
| Testimony from Bernadette Rupright.docx |
SJUD 3/22/2013 1:30:00 PM |
SJR 9 |
| Letter from Covey.pdf |
SJUD 3/22/2013 1:30:00 PM |
SJR 9 |
| Letter from Dennis Fradley.pdf |
SJUD 3/22/2013 1:30:00 PM |
SJR 9 |
| Testimony from Agnes Moran.pdf |
SJUD 3/22/2013 1:30:00 PM |
SJR 9 |
| Letter from Tanana Chiefs Conference.pdf |
SJUD 3/22/2013 1:30:00 PM |
SJR 9 |
| Letter from Dennis Fradley.doc |
SJUD 3/22/2013 1:30:00 PM |
SJR 9 |
| Letter from Vicki Chekan.pdf |
SJUD 3/22/2013 1:30:00 PM |
SJR 9 |