02/01/2012 03:00 PM House EDUCATION
| Audio | Topic |
|---|---|
| Start | |
| HB145 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 145 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE EDUCATION STANDING COMMITTEE
February 1, 2012
3:09 p.m.
MEMBERS PRESENT
Representative Alan Dick, Chair
Representative Lance Pruitt, Vice Chair
Representative Eric Feige
Representative Paul Seaton
Representative Peggy Wilson
Representative Sharon Cissna
Representative Scott Kawasaki
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 145
"An Act establishing the parental choice scholarship program to
be administered by school districts for the purpose of paying
the cost of attending grades kindergarten through 12 at public
and private schools; and providing for an effective date."
- MOVED CSHB 145(EDC) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 145
SHORT TITLE: K-12 SCHOLARSHIP PROGRAM
SPONSOR(s): REPRESENTATIVE(s) KELLER
02/09/11 (H) READ THE FIRST TIME - REFERRALS
02/09/11 (H) EDC, FIN
03/25/11 (H) EDC AT 8:00 AM CAPITOL 106
03/25/11 (H) Heard & Held
03/25/11 (H) MINUTE(EDC)
04/04/11 (H) EDC AT 5:00 PM CAPITOL 106
04/04/11 (H) Heard & Held
04/04/11 (H) MINUTE(EDC)
04/06/11 (H) EDC AT 8:00 AM CAPITOL 106
04/06/11 (H) Heard & Held
04/06/11 (H) MINUTE(EDC)
04/08/11 (H) EDC AT 8:00 AM CAPITOL 106
04/08/11 (H) Heard & Held
04/08/11 (H) MINUTE(EDC)
04/11/11 (H) EDC AT 8:00 AM CAPITOL 106
04/11/11 (H) -- MEETING CANCELED --
04/15/11 (H) EDC AT 8:00 AM CAPITOL 106
04/15/11 (H) <Bill Hearing Canceled>
01/23/12 (H) EDC AT 8:00 AM CAPITOL 106
01/23/12 (H) Heard & Held
01/23/12 (H) MINUTE(EDC)
01/27/12 (H) EDC AT 8:00 AM CAPITOL 106
01/27/12 (H) Heard & Held
01/27/12 (H) MINUTE(EDC)
02/01/12 (H) EDC AT 8:00 AM CAPITOL 106
02/01/12 (H) Held over to 2/1/12 3:00 PM meeting
02/01/12 (H) EDC AT 3:00 PM CAPITOL 106
WITNESS REGISTER
REPRESENTATIVE WES KELLER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Responded to questions regarding the
proposed committee substitute (CS), during the hearing on HB
145, as Prime Sponsor.
JEAN MISCHEL, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
POSITION STATEMENT: Responded to questions, during the hearing
on HB 145.
ACTION NARRATIVE
3:09:10 PM
CHAIR ALAN DICK called the House Education Standing Committee
meeting to order at 3:09 p.m. Present at the call to order were
Representatives Dick, P. Wilson, Feige, Seaton, Cissna, and
Kawasaki. Representative Pruitt arrived while the meeting was
in progress.
HB 145-K-12 SCHOLARSHIP PROGRAM
3:09:34 PM
CHAIR DICK announced that the only order of business would be
HOUSE BILL NO. 145, "An Act establishing the parental choice
scholarship program to be administered by school districts for
the purpose of paying the cost of attending grades kindergarten
through 12 at public and private schools; and providing for an
effective date." [The proposed committee substitute (CS) for HB
145, labeled 27-LS0223\G, Mischel, 1/24/12, adopted at the
January 27, 2012 meeting, was before the committee.]
3:09:48 PM
REPRESENTATIVE FEIGE moved Amendment G.3, labeled 27-LS0223\G.3,
Mischel, 1/27/12, which read as follows [original punctuation
provided]:
Page 2, line 7:
Delete "pay to a participating school attended by the
student under this section"
Insert "award"
Page 2, line 9:
Delete "and local"
Page 2, line 11, following "resides.":
Insert "of the amount available for a parental choice
scholarship under AS 14.31.045, the department shall
pay a parental choice scholarship while a student is
attending a participating school as follows:
(1) to the school district, in which the
participating student resides, except as provided in
AS 14.31.030(c), 30 percent of the amount the district
would receive as state aid under AS 14.17 for the
student; and
(2) to a participating school, except as provided in
AS 14.31.030(c), the amount remaining after the
district is paid under (1) of this subsection, up to
70 percent of the amount the district in which the
student resides would receive as state aid under
AS 14.17 for the student."
Page 2, line 13:
Delete "(b)"
Insert "(b)(2)"
Page 3, line 6, following "districts.":
Insert "(a)"
Page 3, following line 11:
Insert new subsections to read:
"(b) If requested by a participating school, a school
district that receives a payment under
AS 14.31.020(b)(1) shall enter into a lease agreement
with the participating school for space controlled by
the school district if
(1) the lease is offered with reasonable terms;
(2) the space that is subject to the lease agreement
is available; and
(3) the agreement is consistent with applicable state
law.
(c) If a school district that receives a payment
under AS 14.31.020(b)(1) unreasonably refuses to enter
into a lease agreement as provided under (b) of this
section, the board may, after notice and an
opportunity for a hearing before the board, order the
department to provide to the participating school that
requested the lease agreement the funding the district
received under AS 14.31.020(b)(1) for the students
attending the participating school."
Page 4, line 7, following "schools":
Insert "and affected districts"
Page 4, line 9, following "schools":
Insert "and affected districts"
CHAIR DICK objected for discussion.
3:10:13 PM
REPRESENTATIVE FEIGE said there is a possibility that a school
district may experience a number of public students departing
the system to enroll in a private facility. Amendment G.3
provides a means to maintain the infrastructure of the public
school, protecting a state owned building, by allowing district
retention of 30 percent of the state allocated funds; the
remainder to follow the student to the school of choice. He
suggested that a private school may be located within the
existing school building; perhaps renting classroom space.
Private schools should not be denied the opportunity to rent
space, he opined, as such action would hinder the development
and advancement of private schools. If a superintendent chose
not to rent space to a private venture, 100 percent of the
funding would follow the student to the school of choice, as
indicated in the amendment. He pointed out that the 30 percent
figure is based on the existing amount allowed under the BSA for
facility expenditures.
REPRESENTATIVE WES KELLER, Alaska State Legislature, speaking as
the sponsor of HB 145, stated support for the amendment.
3:14:53 PM
REPRESENTATIVE SEATON explained his understanding that the
amendment directs funds based on where a student resides, not on
the location of the school being attended. District cost
factors, paid to the school of choice may create a situation
where students leave a district with a high geographic cost
differential, to attend a facility with a much lower cost
factor. He asked for clarification on the intent of the
amendment regarding school location versus a student's resident
address.
REPRESENTATIVE FEIGE responded that the intent is to capture the
cost that would be paid to the public school being exited, and
protect the asset value of the state owned building.
REPRESENTATIVE SEATON hypothesized a scenario of a student, with
a residence in Toksook Bay, attending a school of choice in
Wasilla. He pointed out that the geographic/operational cost
differential between these two school locations is substantial.
The amendment would encumber the state to pay 30 percent to
Toksook Bay and 70 percent to Wasilla, based on the student's
residence in Toksook Bay.
REPRESENTATIVE FEIGE said that is correct, and thus, the student
has an opportunity for choice, and the state's asset remains
protected.
REPRESENTATIVE DICK interjected that this scenario is currently
playing out in areas of the Bush. He pointed out that the
Nikolai School was built for a capacity of 45 and the current
enrollment is down to 10. The relocation may be for a different
reason than attending a school of choice, but the cost of
maintaining the school building remains the same.
3:19:55 PM
REPRESENTATIVE KAWASAKI asked whether the new section affects
properties such as buildings leased from the private sector; a
common practice in the Fairbanks area among the charter schools.
REPRESENTATIVE FEIGE said the cost of the lease represents a
fixed amount and the 30 percent would be retained to offset
those costs.
REPRESENTATIVE KAWASAKI questioned the origination of the 30
percent amount.
REPRESENTATIVE FEIGE explained that under current regulation 70
percent of funding must be spent on classroom instruction, which
leaves 30 percent for fixed, facility costs.
REPRESENTATIVE KAWASAKI stated opposition to the amendment, and
said it leaves the taxpayers on the hook.
REPRESENTATIVE FEIGE suggested that the taxpayers would not be
burdened as the funding for the program originates with the
state.
3:22:24 PM
REPRESENTATIVE P. WILSON offered her understanding of the
amendment, that whatever is budgeted for an individual student,
70 percent of that amount is directed to the school of choice,
and 30 percent remains with the school of origin in order to
preserve and maintain the state facility.
REPRESENTATIVE KAWASAKI suggested that a school may not need the
30 percent, and he asked what would happen under that scenario.
3:23:57 PM
REPRESENTATIVE CISSNA added concern for how transportation costs
would be handled.
REPRESENTATIVE SEATON reminded the committee that a request has
been made of the department for an analysis of the
transportation aspect.
3:25:32 PM
REPRESENTATIVE KAWASAKI reported that the municipalities of
Anchorage and Fairbanks supplement school heat and electricity
costs, via property taxes.
REPRESENTATIVE SEATON returned to the scenario that he
previously theorized, and said it creates an inequitable
situation. He suggested attaching the percentage factor to the
location of the school to reflect applicable maintenance costs.
3:26:47 PM
REPRESENTATIVE SEATON offered Amendment 1, to Amendment G.3, to
read:
Page 1, line 17 following "in which the":
Delete: "student"
Insert: "school"
3:28:13 PM
CHAIR DICK announced that without objection Amendment 1, to
Amendment G.3 was adopted.
CHAIR DICK removed his objection to Amendment G.3
3:28:36 PM
REPRESENTATIVE KAWASAKI objected and directed attention to page
2, line 12, of the amendment, to inquire how lease agreements
would be entered into. He said it appears that if a private
school chooses to lease, or rent a portion of, an existing
public school building, the request cannot be denied.
REPRESENTATIVE FEIGE said the purpose of the proposed subsection
(c) is to encourage public schools to lease out available
classroom space. In a small village, there may not be suitable
real estate options for a private school, and the existing
public building may be the primary choice. Reasonable terms
should be offered to a private venture for consideration.
REPRESENTATIVE KAWASAKI suggested that this action may not be
constitutional, as the building may still be held under a bond.
3:31:25 PM
JEAN MISCHEL, Attorney, Legislative Legal Counsel, said it is a
legitimate question, and the constitutionality could be a
concern, but it would depend on the facts contained in the terms
of the lease agreement.
REPRESENTATIVE SEATON asked for expansion on the previous
response.
MS. MISCHEL said she could research the question and provide
additional information on the topic. Further, she reminded the
committee that the entire bill raises constitutional questions.
If schools are competing for existing space, the negotiations
would need to be taken-up on neutral, not religious, grounds.
The committee took an at-ease at 3:35 p.m.
3:35:26 PM
REPRESENTATIVE PRUITT asked to have legal counsel research the
tax implications for the benefit of the committee.
MS. MISCHEL responded that the general rule stipulates that
money collected as taxes must be used for the benefit of the
area in which the taxpayers reside. Other constitutional
questions, on this bill, require analysis, she said.
REPRESENTATIVE PRUITT inquired whether a lease entered into at a
cost which would provide revenue to an area could be considered
acceptable.
MS. MISCHEL answered that it would be fact specific, and
declined to guess how a court would rule. However, if taxpayers
are gaining revenue, it might meet the benefit language.
REPRESENTATIVE KAWASAKI questioned whether a long time resident
could find cause to bring suit against the state for leasing a
public school building, paid for by local taxes, to a religious
school entity.
MS. MISCHEL said, "I believe he would."
REPRESENTATIVE FEIGE said the basic question is whether or not a
public school building can be legally leased to an outside
entity. He pointed out that Amendment G.3 has 3 qualifying
conditions: 1) a lease must be offered; 2) the space must be
available; 3) the lease must be consistent with any applicable
state laws. He added that the [30 and 70 percent] payments
referred to on page 2, lines 6-8, represent the same payments
referred to on page 1, lines 12-14.
3:41:44 PM
REPRESENTATIVE CISSNA expressed interest in having an answer to
the question regarding the feasibility of renting a publicly
owned school building to a private organization.
MS. MISCHEL responded that provision under the uncodified law
makes allowance for private groups to use a school. The law
specifies that it must be outside of regular school hours.
Also, the group would be required to be neutral in regards to
religion and other protected interests.
3:43:43 PM
REPRESENTATIVE KAWASAKI asked whether the facilities could be
leased, or rented, for profit.
MS. MISCHEL offered to provide the requested information, as
well as details on taxpayer challengers to school voucher
programs, which have recently come to the U.S. Supreme Court.
The information applies to the bill, not to the specific
amendment under discussion, she stipulated.
3:44:46 PM
REPRESENTATIVE FEIGE suggested that the objections might be
considered thusly: If a restriction prohibits the public school
facility from being leased during regular operating hours, the
private school would make necessary scheduling adjustments;
whether the public school facility can be leased for a profit or
not, requires reasonable terms to be determined by the
individual district. The intent is that a school district not
be allowed to deny the lease of available classroom space, which
would directly stifle competition.
REPRESENTATIVE KAWASAKI maintained his objection.
3:46:45 PM
A roll call vote was taken. Representatives Seaton, Feige,
Pruitt, Cissna, and Dick voted in favor of Amendment G.3.
Representatives Kawasaki and P. Wilson voted against it.
Therefore, Amendment G.3, to the proposed CS for HB 145, was
adopted by the House Education Standing Committee by a vote of
5-2, as amended.
3:48:26 PM
The committee took an at-ease from 3:48 p.m. to 3:50 p.m.
REPRESENTATIVE FEIGE moved Amendment G.5, labeled 27-LS0223\G.5,
Mischel, 1/27/12, which read as follows [original punctuation
provided]:
Page 3, lines 6 - 7:
Delete "Notwithstanding the lower limit for a student
count of 10 under AS 14.17.450(a) and (b), a"
Insert "A"
Page 3, line 10:
Delete "the school size factor under AS 14.17.450"
Insert "state aid under AS 14.17"
CHAIR DICK objected for discussion.
3:50:17 PM
REPRESENTATIVE FEIGE stated:
It clarifies that the school that is protected under
this provision is funded as if it had 10 students, not
just treated as having 10 students for simply the
school cost factor.
REPRESENTATIVE KELLER stated support for the amendment.
3:51:58 PM
REPRESENTATIVE SEATON commented that the public school will
receive state funding, and the student's school of choice will
be funded separately via the scholarship program. He noted that
the state would be paying two entities, for two years, for the
same student, and asked if that is the intent.
REPRESENTATIVE FEIGE responded that the intent of the amendment
is to clarify language regarding how the funding is to be
directed. The state could be providing funds to two educational
facilities for a two year period. A public school that has
fallen below 10 will be given the opportunity to build up the
quality of the school, regain parent confidence, and regain
local enrollment, during a two year period.
REPRESENTATIVE SEATON noted that empty seats would be funded in
the exited school, while funding would also be received by the
school of choice where the student actually attends.
REPRESENTATIVE FEIGE maintained that the intent applies to the
10 student clause, and a level of funding needs to be directed
to a school to keep it viable for any remaining students. A two
year grace period is written into the bill to provide an
opportunity to keep a school from closing.
CHAIR DICK added that funds may be expended twice on a given
student; however, money may be saved by not having to close a
school and possibly re-open it later.
3:55:01 PM
REPRESENTATIVE CISSNA reported on the small village of Nikolski,
which has been unable to meet the 10 student minimum. She said
it is expensive to maintain and operate a school in small
communities with less than 10 students.
REPRESENTATIVE FEIGE agreed, and said that it is costly to shut
down, as well as reopen a school. However, he pointed out that
laws already exist pertaining to school size, and those statutes
are not being questioned in this bill.
3:57:22 PM
REPRESENTATIVE KAWASAKI asked to hear from the department
regarding the fiscal impact of this type of approach.
CHAIR DICK pointed out that the bill carries an indeterminate
fiscal note.
3:58:11 PM
REPRESENTATIVE SEATON cautioned that a school could suffer the
loss of all of its students to a private school. The proposed
amendment would place in statute a requirement for continued
funding at the 10 student level. He said that this scenario
would replicate what has already occurred in the Aleutians, when
ADM fell to zero, but the superintendent and other contractual
costs had to be honored by the state.
REPRESENTATIVE FEIGE agreed that it creates a difficult
situation when the ADM is not viable, but opportunity should be
given to allow a small school to rebuild should the numbers fall
below 10.
4:00:06 PM
REPRESENTATIVE PRUITT referred to the bill, page 3, line 8, and
said that an amendment could be proposed to include language
stipulating an ADM range of less than 10 but more than 5
students.
4:01:04 PM
REPRESENTATIVE KAWASAKI suggested that the department may have a
means to determine how accountability of funds would be tracked
in this type of situation, perhaps through regulation.
4:03:20 PM
The committee took an at-ease from 4:03 p.m. - 4:05 p.m.
REPRESENTATIVE FEIGE withdrew Amendment G.5., then referring to
the bill, proposed Conceptual Amendment 1:
Page 3, line 8 following "less than 10":
Insert: "but greater than or equal to 5"
REPRESENTATIVE KAWASAKI objected for discussion.
REPRESENTATIVE KAWASAKI withdrew his objection, and with no
further objection Conceptual Amendment 1 was adopted.
4:05:50 PM
REPRESENTATIVE FEIGE re-introduced Amendment G.5, as previously
provided.
REPRESENTATIVE KAWASAKI objected for discussion.
4:06:27 PM
REPRESENTATIVE SEATON clarified that given an ADM below 5,
proposed Amendment G.5 would not apply, as amended.
REPRESENTATIVE KAWASAKI withdrew his objection, and without
further objection, Amendment G.5 was adopted.
4:07:28 PM
REPRESENTATIVE CISSNA offered Amendment G.6, labeled 27-
LS0223\G.6, Mischel, 1/30/12, which read as follows [original
punctuation provided]:
Page 2, following line 22:
Insert a new paragraph to read:
"(1) is located in a community with a population of
not less than 35,000;"
Renumber the following paragraphs accordingly.
Page 4, lines 19 - 27:
Delete all material.
Renumber the following bill sections accordingly.
Page 4, line 30:
Delete "Sections 1 and 2 of this Act take"
Insert "Section 1 of this Act takes"
Page 5, line 3:
Delete "sec. 3 of this Act, secs. 1 and 2 of this Act
take effect, they take"
Insert "sec. 2 of this Act, sec. 1 of this Act takes
effect, it takes"
Page 5, line 4:
Delete "sec. 3"
Insert "sec. 2"
REPRESENTATIVE KAWASAKI objected for discussion.
REPRESENTATIVE CISSNA indicated that many communities are
experiencing declining populations, affecting the local school
ADM. She said the proposed amendment limits the scope of the
bill to areas with populations of not less than 35,000. The
more populated areas of the state are better equipped to support
the social, economic issues and receive a benefit from this
legislation, she opined.
CHAIR DICK reported that support, for the bill, has been wide
spread, including response from smaller communities. A pilot
program would not be objectionable; however, the limitation of
the amendment would eliminate participation of many areas of the
state.
REPRESENTATIVE PRUITT opined that the amendment would limit the
program to residents of Anchorage, Fairbanks, and Juneau. He
pointed out that the proposed amendment stipulates communities,
not districts, and stipulating districts would expand
participation significantly.
4:12:16 PM
REPRESENTATIVE P. WILSON interjected that her office has also
received letters of support from smaller communities, and said,
based on the response, she would not support the amendment.
CHAIR DICK stated that he would not support limiting the scope
of the bill. He said his intent is to activate interest in new
educational approaches for the state, and reducing the
possibility of participation may serve to create apathy rather
than provide a stimulus.
4:13:24 PM
REPRESENTATIVE KAWASAKI emphasized the affective difference
between considering the population of a community versus a
district, and asked the sponsor for clarification of intent.
REPRESENTATIVE CISSNA deferred to legal counsel.
MS. MISCHEL responded that the term community is not defined in
Title 14. She read the definition of community, as found under
AS 06.05.990(8), which states the following [original
punctuation provided]:
(8) "community" means a city, town,
unincorporated village, or, in the absence of one of
the foregoing, a trade area;
MS. MISCHEL said the term, as defined, applies only to the
banking industry. However, the dictionary definition and common
use of the term could be used for purposes of the amendment.
CHAIR DICK lauded the committee members concern for the small
communities, but maintained that the restricted scope, and
exclusionary action, would not be helpful to the intent of the
bill.
4:15:25 PM
REPRESENTATIVE CISSNA opined the possibility of an opportunity
being negative, and said that many questions have remained
unanswered regarding the proposed legislation. Whatever
emanates will be an experiment she said, and positive actions
such as magnet schools could spring forth. She stressed her
support for school choice and the intent of the legislation;
however, enough questions remain unanswered to require the
committee to proceed with caution.
REPRESENTATIVE KAWASAKI maintained his objection.
4:18:59 PM
A roll call vote was taken. Representatives Cissna and Kawasaki
voted in favor of Amendment G.6. Representatives P. Wilson,
Seaton, Feige, Pruitt, and Dick voted against it. Therefore,
Amendment G.6, to the proposed CS for HB 145, failed to be
adopted by the House Education Standing Committee by a vote of
2-5.
4:20:17 PM
REPRESENTATIVE P. WILSON moved Amendment G.7, labeled 27-
LS0223\G.7, Mischel, 2/1/12, which read as follows [original
punctuation provided]:
Page 2, following line 22:
Insert a new paragraph to read:
"(1) without discriminating on the basis of race,
religion, color, national origin, sex, or disability,
enrolls all eligible students who submit a timely
application; if the number of applications exceeds the
physical capacity of the program, class, grade level,
or building, students shall be accepted by random
drawing;"
Renumber the following paragraphs accordingly.
4:20:26 PM
REPRESENTATIVE KAWASAKI objected for discussion.
REPRESENTATIVE P. WILSON explained that the intent of the
proposed amendment is to eliminate discrimination and to include
a process of action when a private school's application count
exceeds the school/class capacity. She pointed out that state
funded public schools must be prepared to accept and incorporate
every enrollee, but private schools typically have requirements
for enrollment. The amendment seeks to equalize that onus:
when accepting state funds, private schools must be prepared to
accept every student who submits a timely application. Further,
a lottery would be held, if the number of applications to the
private facility exceeds the institute's threshold.
CHAIR DICK inquired about special needs students. He said it
could be financially difficult if, in a community with a class
of twenty-five, one was a special needs student, requiring a
specialized instructor.
REPRESENTATIVE P. WILSON replied that the severity of the
student's needs would dictate the requirement. However,
intensive needs students are allotted 17 times the amount of the
normal ADM; enough to hire appropriate staff.
CHAIR DICK recalled that similar concerns, raised in other
states, were determined to be unfounded.
4:22:46 PM
REPRESENTATIVE KELLER stated opposition to the amendment, and
said that the purpose of the bill is to stimulate innovation and
new opportunities. He said the majority of private schools have
formed specifically for special educational purposes, and like
most private schools, form under a 501(c)(3) [federal tax
structure]. Protections are provided under the 501(c)(3)
regarding discrimination, and, he opined, further protection is
not necessary.
4:23:46 PM
REPRESENTATIVE KAWASAKI asked if Alaska has had any private
schools open to specifically serve special needs students.
REPRESENTATIVE KELLER clarified that he was not speaking of
schools in Alaska, but the nation in general. Further, he said
the purpose of the bill is not to mandate that every school
provide services to every class of students; parental choice is
the intent.
REPRESENTATIVE KAWASAKI inquired about special needs private
schools and how they are funded elsewhere. He asked whether
extra funds are available, outside of the base student
allocation, which the committee could review.
REPRESENTATIVE KELLER explained that HB 145 holds the parents
responsible for any additional funds necessary to support a
special needs student in a regular classroom beyond what the
state budgets.
REPRESENTATIVE P. WILSON pointed out that whatever has occurred
in other states, the situations would not be comparable to what
exists in Alaska, given the road systems and population
distribution of the Lower 48. She said this is a fairness issue
and the amendment ensures that parents will receive choice and
not be turned away.
REPRESENTATIVE KAWASAKI referred to a previous statement, made
by the sponsor, and asked for further clarity on the
discrimination laws that apply to private schools.
REPRESENTATIVE KELLER answered that the 501(c)(3) federal tax
documents defines what is legitimate and what is not.
4:27:18 PM
REPRESENTATIVE KAWASAKI expressed concern for the federal tax
code, under discussion, being intertwined with Alaska Statute.
He said an intentionally small section of state law exists for
dealing with religious and private schools. The section is
small due to the state choosing to remain removed from
involvement with private and religious institutions.
Specifically, students in private schools are not fully
protected by nondiscrimination laws relating to religious
affiliation, ethnicity, or ability limitations. He asked legal
counsel to confirm his understanding.
MS. MISCHEL said that competing constitutional interests are at
stake, and each private school that participates in the program
will need to be scrutinized to determine eligibility of federal
funding, and whether anti-discrimination laws apply. Equal
protection and establishment clause issues also arise, and it
would be possible for a parent to bring suit under the equal
protection provision. If suit were brought, she opined, the
breaching of state and federal law could be implicated. The
groups listed in the amendment are construed to be protected
classes of citizens, and as such would require a higher level of
scrutiny by a court.
REPRESENTATIVE SEATON noted that a recent U.S. Supreme Court
decision found private/religious schools exempt from some of the
qualifications listed in the proposed amendment. He asked
whether she has considered this new ruling in her analysis.
MS. MISCHEL named the case being referred to as Arizona
Christian School Tuition Organization v. Winn et al., 09-987,
decided 4/4/11. She said the case does not represent an equal
protection challenge, but was brought against an establishment
clause. The nondiscrimination question, which the proposed
amendment speaks to, raises an equal protection clause question.
The first question the court would review, in such a case, would
be to determine if there is state action involved. She said
private entities can and do discriminate at will, unless state
function, or action, is involved. The Arizona case revolved
around a tax exemption, which is not what is being offered in
the proposed amendment or HB 145.
4:32:43 PM
REPRESENTATIVE SEATON asked whether direct state funding would
be considered as relating closer to the law than a tax
exemption. Thus, with the federal law in place, then Amendment
G.7 would serve to verify, in state statute, that the conditions
of nondiscrimination must apply.
MS. MISCHEL said yes, and indicated that the amendment would
provide clarity for any challenges that would arise on grounds
of equal protection.
4:33:34 PM
REPRESENTATIVE CISSNA stated support for amendment G.7 and
stressed the importance for the addition of the proposed
language.
4:34:58 PM
REPRESENTATIVE KELLER asked the amendment sponsor whether the
intent is to prohibit a religious private school to not have a
statement of faith in their application. Current law has three
provisions which exempt religious schools, he said, and read
from AS 14.45.100 [original punctuation provided]:
A religious or other private school that complies with
AS 14.45.100 - 14.45.130 is exempt from other
provisions of law and regulations relating to
education except law and regulations relating to
physical health, fire safety, sanitation,
immunization, and physical examinations.
REPRESENTATIVE KELLER opined that current statute covers the
nondiscrimination issue, and maintained that the proposed
amendment "goes farther than what you may think."
4:36:36 PM
REPRESENTATIVE FEIGE said the bill pertains to choice, and the
current system provides for a level of nondiscriminatory
service. The amendment would require a denominational school to
accept a possible religious agitator into a facility. He
suggested that one of the unintended consequences could be the
limiting of opportunities for a competitive environment in the
overall educational system. Further, the amendment may stifle
competition and innovation which the bill seeks to encourage.
REPRESENTATIVE KELLER agreed and said it is why he opposes the
amendment.
CHAIR DICK concurred that choice, innovation, and fairness are
important. The current charter schools are not allowed to
deviate from the expected norm more than a few degrees, creating
limits to innovative educational approaches.
REPRESENTATIVE KAWASAKI expressed opposition to the proposed
amendment and said it would blur the delineation of religious
and public schools, as clearly set forth in the existing,
succinct statutes.
REPRESENTATIVE PRUITT echoed the sentiments of the previous
committee member, and stated opposition to the proposed
amendment.
REPRESENTATIVE SEATON pointed out that the intent is to allow
parental choice; however, the bill allows discrimination on
every level: race, religion, or creed. Statute is being
proposed to require that public funds be paid to a school which
could exclude Native students from attending. In the event of a
legal challenge, state and federal litigation would ensue, and
he stressed the importance of avoiding such an ordeal. He
agreed that choice should be allowed, but if a school accepts
state funding, it must operate without discrimination, as
proposed in the amendment.
4:46:19 PM
REPRESENTATIVE FEIGE asked how other states that have adopted
this type of program have addressed this issue.
REPRESENTATIVE KELLER said that choice is provided to the
parents via a voucher system, which is payable to any
private/religious school. Admittedly, in every jurisdiction
that has allowed this type of choice, litigation has ensued.
Last year, 18 states considered adoption, or expansion, of
voucher programs. He said that to rewrite how and what type of
school can participate in the program, and imposing the same
restrictions as the public schools operate under, defeats the
purpose of the bill.
REPRESENTATIVE FEIGE summarized that public funds would be
provided to every student for educational purposes. The student
then has a choice from a multitude of opportunities. He opined
that the opportunities would far outweigh the limitations and
the population as a whole will benefit.
4:49:25 PM
CHAIR DICK interjected that parental ideological choice will
either be based on religious grounds or secular humanism, and
pointed out that the state funds secular humanism exclusively.
REPRESENTATIVE CISSNA stated her understanding that certain
groups may be excluded under this bill, and stressed the
importance of the amendment.
REPRESENTATIVE SEATON maintained that the bill allows funding of
schools that have discriminatory admission standards, unless the
amendment is adopted.
REPRESENTATIVE KELLER underscored that funds will be directed to
a school of choice.
REPRESENTATIVE KAWASAKI agreed. However, he added, without the
amendment, admission could be denied even though it is the
school of choice.
REPRESENTATIVE KAWASAKI maintained his objection.
4:53:53 PM
A roll call vote was taken. Representatives Cissna, P. Wilson,
and Seaton voted in favor of Amendment G.7. Representatives
Pruitt, Kawasaki, Feige, and Dick voted against it. Therefore,
Amendment G.7, to the proposed CS for HB 145, failed to be
adopted by the House Education Standing Committee by a vote of
3-4.
4:55:01 PM
CHAIR DICK returned to consideration of the proposed CS and
reminded the committee that the bill is the first step in an
extremely difficult and long process.
4:55:34 PM
REPRESENTATIVE SEATON reported that in other states where this
legislation has occurred, the result has not been an exodus from
the public school system, but the allowance of public funds to
be paid to private institutions; existing students in existing
alternative private and religious institutions. The bill will
primarily affect ongoing private schools, which will not need to
expand, or alter enrollment practices in order to receive public
funding. The private schools will not be required to alter any
discriminatory practices, which may be an aspect of their
policy, including the denial of Native students, outside
religions, or other imposed criteria. For this reason, he
explained, he cannot support the bill, and said:
To me this is not an appropriate vehicle for funding
for the state sponsor of schools that are
specifically, by state law, allowed to discriminate.
... My feeling is that if people want to change the
[Alaskan] constitution ... and then we have bills that
are constitutional come before us, then they should be
considered. But when we are considering things that
are currently unconstitutional, or known to be
unconstitutional, I don't think we should advance the
bill.
4:57:56 PM
REPRESENTATIVE FEIGE acknowledged that the bill is a benefit to
students currently going to private schools; children of tax
paying residents. A counter argument would be that the state is
discriminating against the current private school students by
not providing educational funding. A popular dissatisfaction
exists with parents of the state, who do not feel that they are
getting what they are paying for in the public system. Parents
are asking for the opportunity to have educational choice. The
effect of the bill will be to offer choice, break the monopoly
of the existing public education system, and incite healthy
competition. He acknowledged that a bill requesting an
amendment to the Constitution of Alaska will need to be passed,
prior to the enactment of HB 145, but passage of the bill
represents a step in the right direction.
5:00:24 PM
REPRESENTATIVE KAWASAKI said that we live in a great nation
because of the national and state public system that ensures
every child a free, nondiscriminatory education. The bill
allows discrimination to occur, which is a dangerous policy, he
cautioned. Additionally, there remain many unanswered questions
regarding financial implications, as well as policy issues to be
addressed.
5:01:56 PM
REPRESENTATIVE CISSNA said she could not support this bill,
although there is merit to what has been heard. Many
constituents have weighed-in, however, the concerns voiced are
broad in nature and are not limited to dissatisfaction with the
educational system. There needs to be more time and energy put
forward to solve the spectrum of issues, she finished.
5:03:32 PM
REPRESENTATIVE P. WILSON opined that she supports parents having
choice, but the bill does not provide choice. Urban families
would have the possibility for educational alternatives, but in
small, rural areas where schools are failing, options are not
available. She said:
Their choice is, well, if we move maybe we can give
our child that choice - if we apply at the right
school, if there's an opening, if they will take my
child. ... What we're doing is it's a way for the
state to fund private schools. It's not a way to give
parental choice. ... The state is going to be paying
for private schools and not everyone's going to have
the choice to go there, and I think that's a very sad
thing. Because I want parents to have a choice, I'm
not going to stop this bill, ... but it's a sad
situation when we're going to set up something so part
of the state can have some advantages that the rest of
the state just isn't going to have ... that's not
fair.
5:05:46 PM
REPRESENTATIVE PRUITT said assumptions are being made, such as
whether private school initiatives will not start-up in rural
areas. However, with the funding offered in the bill, he said
it may occur. Assumptions should not be made, he suggested, as
it limits the potential that exists.
5:07:43 PM
CHAIR DICK said the Alaska Federation of Natives has submitted
support for the bill. The Native people have been crying out
for 40 years and stating what they want in education, and for 40
years the educational system of Alaska has failed to meet the
Native needs. "Again we've got SEE SPOT RUN 2012; it's still
going on right now," he said. Despite the controversy that
exists around the bill, he stressed that the Native people will
be excited to see it pass out of committee and possibly affect
some change in the system; perhaps what should have occurred
some time ago. He then asked for a motion to move the bill from
committee.
5:08:43 PM
REPRESENTATIVE PRUITT moved to report the proposed CS for HB
145, Version 27-LS0223\G, Mischel, 1/24/12, as amended, from
committee with individual recommendations, and the accompanying
indeterminate fiscal note.
REPRESENTATIVE KAWASAKI objected
A roll call vote was taken. Representatives Feige, Pruitt, P.
Wilson, and Dick voted in favor of reporting CS for HB 145,
Version 27-LS0223\G, Mischel, 1/24/12, as amended, out of
committee. Representatives Cissna, Kawasaki, and Seaton voted
against it. Therefore, CSHB 145(EDC) was reported out of the
House Education Standing Committee by a vote of 4-3.
5:09:57 PM
REPRESENTATIVE KELLER thanked the committee and said it
represents a new educational concept for the State of Alaska.
5:11:09 PM
CHAIR DICK announced the agenda for the next committee meeting.
ADJOURNMENT
There being no further business before the committee, the House
Education Standing Committee meeting was adjourned at 5:12 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB145-EED-ESS-11-9-11.pdf |
HEDC 2/1/2012 3:00:00 PM |
HB 145 |