Legislature(1999 - 2000)
03/03/1999 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SSHB 5 - VOUCHER SYSTEM FOR EDUCATION
CHAIRMAN KOTT announced the next order of business is SSHB 5, "An
Act relating to vouchers for education; and providing for an
effective date."
CHAIRMAN KOTT explained that the bill was waived out of the House
Health, Education and Social Services Standing Committee, and that
committee has requested that it be returned, if it passes out of
the House Judiciary Standing Committee.
CHAIRMAN KOTT called on Randy Lorenz, staff to Representative Vic
Kohring, sponsor of the bill.
Number 1470
RANDY LORENZ, Researcher for Representative Vic Kohring, Alaska
State Legislature, explained Representative Kohring was here
earlier, but had to leave due to a conflict with a House Finance
Standing Committee meeting. He will discuss the constitutionality
of the bill today. The main stumbling block for this bill is the
Sheldon Jackson College v. State of Alaska decision. There are two
primary interests that render that decision moot in Alaska's
history. Firstly, Sheldon Jackson was a grant to a college as
compared to an elementary or secondary school. The Education Act
of 1965 throws out different directions to all states requiring the
appropriate education for all school children. Secondly, the
Sheldon Jackson decision looked at the student as a conduit for
funds to be directed to private institutions. He referred to
Black's Law Dictionary and cited the term "direct" is the
immediate, approximate, by the shortest course, without circuitry
operating by an immediate connection or relations instead of
operating through a medium. Therefore, the Sheldon Jackson
decision was misinterpreted by the state supreme court. He
referred to a report from the Department of Law dated February 22,
1999 and stated in both situations it only looks at the Sheldon
Jackson case and refuses to look at over 20 court cases since the
early 1970's that say that part of the constitution cannot be
enforced. He cited in Traverse City School District v. Attorney
General (1971) the Michigan Supreme Court ruled that prohibiting
public funds for private education was unconstitutional, void and
unenforceable because it prevented free exercise of religion
guaranteed by the U.S. Constitution, and violated the equal
protection of law provisions of the U.S. Constitution. He cited in
Warren v. Nusbaum (1972) the U.S. Supreme Court decided that state
constitutions were parallel to the First Amendment therefore any
First Amendment case should control the state's constitutional
interpretation. He cited in Campbell v. Manchester Board of School
Directors (1994) the court unanimously overturned a prior ruling
stating that judicial prudence has evolved greatly since 1961 in
directions unpredicted at the time. Therefore, the constitutional
issue must be examined a new in light of more recent teachings. He
cited in Kotterman v. Killian (1999) the court ruled that primary
beneficiaries of credits are tax payers who contribute to the
school tuition organizations. Parents who might otherwise be
deprived of an opportunity to make meaningful decisions about their
children's education and the children themselves... Private school
are at best only incidental beneficiaries by creating the program
the legislature hoped to encourage the development of an
educational setting that would invigorate learning, improve
academic achievement, and provide additional choices for parents
and children. The Blaine Amendment was a clear manifestation of
religious bigotry and party of a crusade of the contemporary
Protestant Establishment to counter what was perceived as a growing
Catholic menace. It would be hard to divorce the amendment's
language from the insidious, discriminatory intent that prompted
it. He has 18 more court cases that say the use of public funds
for a child's education in a private school is not a violation of
the constitution. The problem is there is no avenue to ask the
Alaska Supreme Court how it feels. The U.S. Supreme Court has made
it very clear in numerous cases that it is not a violation of the
constitution. Three years ago, the U.S. Supreme Court said that
the U.S. Department of Education can make sure that establishment
clause is protected and that there is a separation of church and
state through its normal procedures. He noted that Representative
Kohring would like the committee members to review the court cases
associated with this bill then send it back to the House Health,
Education and Social Services Standing Committee for the final
details, then bring it back to the House Judiciary Standing
Committee to ensure it meets the constitutionality of the state and
U.S. supreme courts. Representative Kohring would like for it to
go to the judges through its normal process.
REPRESENTATIVE KOTT opened the meeting up to public testimony.
Number 2020
ANNE KILKENNY testified via teleconference from the Mat-Su. She
noted the state doesn't have money to burn. Every dollar spent on
litigation is one less dollar available for education and other
more productive purposes. Please don't let the bill move from the
committee until it has been amendment to pass constitutional
muster.
Number 2084
JOHN CYR, President, National Education Association (NEA)-Alaska,
testified in Juneau. The position paper presented by NEA-Alaska
does not really speak to the constitutionality of public money for
private, religious and home schools, but it is clear that Article
VII, section 1 of the Alaska Constitution says, "No money shall be
paid from public funds for the direct benefit of any religious or
other private educational institution." It is a higher threshold
than almost any other state constitution. There is a direct
prohibition against this in the state constitution. He cited in
1996 the Montgomery County Common Pleas Court upheld the Cleveland
voucher system when there isn't a prescription against public funds
going towards a private education. The decision was later reversed
by the Court of Appeals of Ohio, 8th District. He further stated
similar voucher proposals have been held unconstitutional in
Vermont, Maine and Puerto Rico. In addition, most states have a
prohibition against state funds going to religious institutions.
The language seems clear on its face beyond the fact that
educationally it is not good policy. He stated it will cost
between $40 million to $50 million before one child comes out of a
public school and goes to a religious, private or home school.
There are somewhere between 10,000 to 12,000 kids in private or
home schools which equates to about $4,000 per kid which equates to
a lot of money. He asked the committee members to not move the
bill further. It is bad public policy and violates the state
constitution. It has also been found to violate almost every state
constitution around the U.S. In addition, according to polls, the
public is opposed to vouchers. No one wants their tax dollars
going to support religious or privates schools that they don't
agree with, especially because there is no control over private or
home schools. There are no standardization or exit tests, for
example. The bill calls for violating the state constitution and
giving money without any hope of knowing whether or not these kids
would meet the standards expected as a state.
Number 2469
REPRESENTATIVE ROKEBERG asked Mr. Cyr whether NEA-Alaska intends to
submit a legal opinion.
MR. CYR replied NEA-Alaska would be more than happy to research the
issue and get back to the committee...
TAPE 99-10, SIDE A
Number 0001
CHAIR JAMES stated it seems that the benefit of choosing where to
go to school is to the children and not to the institution.
MR. CYR replied under the bill the parents and children do not get
to choose. The school gets to choose. The school decides whether
a child is acceptable to go to a private school. The courts have
ruled that those schools can exclude students on the basis of
gender and achievement, for example. The courts have also ruled
that just because the money is being passed through a parent to a
school, the only place the parent can spend that money is in a
private, religious or home school situation. He called it a shell
game and noted that courts look dimly at that type of game.
Number 0110
CHAIR JAMES stated she is not defending the bill. It has problems,
but she is in favor of parental choice. She asked Mr. Cyr whether
he believes that the state has the obligation to pay for every
child's education in a district rather than those who just sign up
for public school.
Number 0146
MR. CYR replied he believes that the state has an obligation to
make available an affordable, free public education to every child.
In addition, there is an obligation to society. He said, "For
those kids for whom we are not doing a good job educating, we're
going to pay as a society later." The argument of parents paying
taxes and choosing not to send their children to a public school is
specious. It is a personal choice that can't be relegated. For
example, he doesn't own an airplane but some of his taxes go
towards keeping airports open. He thinks he should pay for that
because it makes Alaska a better place.
Number 0309
CECILIA PALIVODA testified via teleconference from Delta Junction.
She teaches her children at home using her own curriculum and
funds. The public school system provides an atheistic school
program and by exercising her right of freedom she does not accept
that and provides an education to her children herself. In doing
that she is denied funding. She purchases everything on her own.
She home schools six children at this time. The curriculum covers
everything from classical music to literature. Her children have
designed and built a barn at the age of 13 and 15. As an atheist,
she would be happy with the public school curriculum, but as a
Christian she is not. Why should she be denied funding to school
her children equally to others? she asked. Her children deserve an
education just as much as children in public schools. If the
public schools were nondenominational that would be one thing, but
an atheistic curriculum is another.
Number 0497
CHAIRMAN KOTT closed the meeting to public testimony.
CHAIRMAN KOTT explained that the committee is charged with the
responsibility of determining whether a voucher system is
constitutional in relation to the state and U.S. constitutions. He
announced he would get the list of court cases from the prime
sponsor's staff and determine whether or not they are relevant.
Most of the cases he mentioned earlier are from outside and might
be considered persuasive, but not binding based on the state
constitution.
Number 0559
REPRESENTATIVE ROKEBERG stated he is curious about the intent of
the bill and asked Mr. Lorenz who is the sponsor of HJR 6.
MR. LORENZ replied HJR 6 is sponsored by Representative Kohring
because the state constitution as it stands now allows for a
voucher system.
REPRESENTATIVE ROKEBERG stated he finds nothing in the bill packet
to corroborate that statement. The language seems to be relatively
clear. He is willing to review minutes from the state
constitutional convention and other legal opinions, but it seems
right now that it is the opinion of the sponsor versus Legislative
Legal Counsel and the Attorney General. In terms of a balance, he
wonders how much effort the House Judiciary Standing Committee
should put into this issue.
Number 0716
CHAIRMAN KOTT stated the House Judiciary Standing Committee will
give the matter a good working over. It is not the intent to delve
into the public policy side of it. At the next meeting, the
committee members will debate the bill's constitutionality. In
looking at the arguments from the Sheldon Jackson case, the bill is
patently unconstitutional. But, would an existing court use the
same arguments under the setting of the bill and marry them against
the state constitution dealing with public education? he asked.
That is the direction for the next meeting at which time it will
also be decided on whether or not to refer the bill back to the
House Health, Education and Social Services Standing Committee.
Number 0799
MR. LORENZ stated, in an effort to not waste any time, the best way
to approach this is to send the bill back to the House Health,
Education and Social Services Standing Committee for changes before
determining its constitutionality. A lemon test is set up to look
at how a program would be implemented to determine its
constitutionality. There are many changes than could be made to
the bill and those changes could render it unconstitutional.
Number 0869
CHAIRMAN KOTT replied the House Health, Education and Social
Services Standing Committee had an opportunity to make any changes
to the bill. The House Judiciary Standing Committee will work with
the existing bill. If it is send back to the House Health,
Education and Social Services Standing Committee, it will be
requested back. There is no guarantee there will be any changes.
If the House Judiciary Standing Committee determines that there are
constitutional problems, the bill will not leave the committee and
go back to the House Health, Education and Social Services Standing
Committee.
Number 0924
REPRESENTATIVE ROKEBERG stated he appreciates the willingness of
Chairman Kott to take up the issue. For the record, he wants to
announce that he is not opposed to vouchers per se. The people in
the state should have more choices. He asked that the committee
members be provided with the minutes of the state constitutional
convention related to the appropriate article, a copy of the
Sheldon Jackson decision, and that the sponsor gets a pro bono
legal opinion to argue his side of the case. Otherwise, it
requires the House Judiciary Standing Committee members to do all
of his work.
CHAIRMAN KOTT noted that the minutes from the state constitutional
convention are available regarding the section on public funding.
Number 0989
REPRESENTATIVE CROFT noted there was a significant amount of
discussion on whether to add direct or indirect public funding by
Delegate Coghill. He would be glad to provide a copy of those
minutes to the committee members. He also has a copy of the
Mathews v. Quinton (ph) case and the Sheldon Jackson case that he
would provide to the committee members. Those are the only two
court cases that he has found relating to Alaska.
CHAIRMAN KOTT indicated that the bill would be held over for
further consideration.
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