02/27/2012 01:30 PM House FINANCE

HOUSE JOINT RESOLUTION NO. 16                                                                                                 
                                                                                                                                
     Proposing amendments to the Constitution of the State                                                                      
     of Alaska relating to state aid for education.                                                                             
                                                                                                                                
1:34:01 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WES KELLER,  SPONSOR, thanked  the committee                                                                    
for  hearing  the  legislation. He  discussed  that  Richard                                                                    
Kromer with  the Institute of  Justice had been  involved in                                                                    
various  private  education  school  scholarship  cases.  He                                                                    
opined  that the  bill  represented a  step  forward in  the                                                                    
education system. He explained that  the purpose of the bill                                                                    
was to  expand education  choice options by  allowing public                                                                    
money  to  follow  children  to  private  schools  based  on                                                                    
parental choice.  The bill  provided a  legislative response                                                                    
to past Alaska Supreme  Court decisions (Matthews v. Quinlan                                                                    
and  Sheldon  Jackson  v.  State  of  Alaska)  that  broadly                                                                    
interpreted  the  restriction  of  state  funds  paying  for                                                                    
private education.  He communicated that the  Alaska Supreme                                                                    
Court  had determined  that the  state constitution  did not                                                                    
allow state money to pay for private religious schools.                                                                         
                                                                                                                                
Representative   Keller  believed   that  there   were  some                                                                    
exciting private  sector options available such  as ITunes U                                                                    
and  Khan Academy.  He  relayed that  the  bill allowed  the                                                                    
private sector  to be more  involved. He had  introduced the                                                                    
bill  because he  believed that  Alaskans solidly  supported                                                                    
the  idea;   he  had   received  a   number  of   calls  and                                                                    
encouragement on  the issue. He explained  that a "credible"                                                                    
survey had been done that  showed "solid support" related to                                                                    
the Blaine Amendment. He relayed  that the Alaska Federation                                                                    
of  Natives (AFN)  had  passed a  resolution  in support  of                                                                    
school  choice. Tom  Fink, former  legislator  and mayor  of                                                                    
Anchorage  had  worked "tirelessly"  on  the  issue and  was                                                                    
available for  questions. He  observed that  charter schools                                                                    
had waitlists and  homeschools were not a  viable option for                                                                    
many working  parents. He stated  that private  schools cost                                                                    
less, but  were prohibitive  to many  parents who  could not                                                                    
afford  to  pay  private  school tuition  on  top  of  other                                                                    
expenses such as  property tax. He relayed  that 2.5 percent                                                                    
of  Alaskan students  were in  private  schools. He  thought                                                                    
that  private schools  could  be used  to  help the  current                                                                    
situation.                                                                                                                      
                                                                                                                                
1:38:23 PM                                                                                                                    
                                                                                                                                
Representative  Keller  opined  that  the  issue  was  large                                                                    
enough that the public should  be able to make the decision.                                                                    
He  stated  that  the   constitutional  amendment  would  be                                                                    
"simple in  size" to  allow for school  choice and  money to                                                                    
follow students into private schools.                                                                                           
                                                                                                                                
Co-Chair  Stoltze discussed  that the  committee would  hear                                                                    
the  bill multiple  times. He  explained that  the immediate                                                                    
fiscal impact  would be the  cost of printing an  extra page                                                                    
in  the ballot  book; there  were other  potential financial                                                                    
implications that were currently not known.                                                                                     
                                                                                                                                
Co-Chair  Thomas   pointed  out   that  AFN  had   passed  a                                                                    
resolution in support of the legislation (copy on file).                                                                        
                                                                                                                                
Representative Keller was excited  about the opportunity the                                                                    
bill presented. He believed AFN  and rural communities would                                                                    
come up with  innovative options if given the  ability to do                                                                    
so.                                                                                                                             
                                                                                                                                
Co-Chair  Stoltze relayed  that  public  testimony would  be                                                                    
held at a future meeting.                                                                                                       
                                                                                                                                
1:41:46 PM                                                                                                                    
                                                                                                                                
Representative   Keller   discussed  that   Richard   "Dick"                                                                    
[Kromer] was  an attorney for  the Institute of  Justice who                                                                    
litigated school  choice cases in federal  and state courts.                                                                    
Several of his current  cases involved the constitutionality                                                                    
of  including religious  schools among  the private  schools                                                                    
that  could  participate  in   school  choice  programs.  He                                                                    
relayed  that Mr.  Kromer was  a resident  expert on  Blaine                                                                    
Amendments. Mr. Kromer had worked  as a federal civil rights                                                                    
attorney  and  had  worked  for   the  U.S.  Departments  of                                                                    
Education  and   Justice,  and  for  the   Equal  Employment                                                                    
Opportunity Commission.                                                                                                         
                                                                                                                                
Representative Gara  asked whether the sponsor  had compiled                                                                    
transcripts   from   the  Constitutional   Convention   that                                                                    
included  the provision  banning  public  funds for  private                                                                    
schools.                                                                                                                        
                                                                                                                                
Representative  Keller  replied  that he  had  compiled  the                                                                    
transcripts,  but   not  in  a   way  that  was   ready  for                                                                    
distribution. He remarked  that he found the  history of the                                                                    
constitution  process  fascinating.  He discussed  that  the                                                                    
Blaine  Amendment had  originally been  an attempt  to amend                                                                    
the U.S.  Constitution by Congressman Blaine;  the amendment                                                                    
had  failed by  one vote.  He  detailed that  laws had  been                                                                    
passed that required  new states, which included  all of the                                                                    
western states  and others, to  have a Blaine  Amendment. He                                                                    
furthered  that   several  of  the  states   had  amendments                                                                    
specifying that  no money should  be directly  or indirectly                                                                    
made  available  to  private  schools.  He  noted  that  the                                                                    
transcripts  were in  the context  of  the Blaine  Amendment                                                                    
history.                                                                                                                        
                                                                                                                                
Representative  Doogan   asked  for  a  background   on  the                                                                    
Institute of Justice.                                                                                                           
                                                                                                                                
1:46:14 PM                                                                                                                    
                                                                                                                                
RICHARD  KROMER,  SENIOR  ATTORNEY, INSTITUTE  FOR  JUSTICE,                                                                    
ARLINGTON,  VIRGINIA  (via  teleconference),  described  the                                                                    
organization  as  a  public interest  law  firm  located  in                                                                    
Arlington, Virginia.  The firm  litigated in  four different                                                                    
areas  including school  choice,  private property  practice                                                                    
(e.g. the  Kelo imminent  domain case), economic  liberty in                                                                    
efforts to open  up entry level occupations  that were over-                                                                    
regulated by state agencies (e.g.  African hair braiding and                                                                    
shoeshine provisions, licensure to  sell caskets and other),                                                                    
and  first  amendment  free  speech  issues  (e.g.  campaign                                                                    
finance reform).  The firm had  been involved in  all school                                                                    
choice cases  including the U.S.  Supreme Court  case Zelman                                                                    
v.  Simmons-Harris, which  upheld the  Cleveland scholarship                                                                    
program against  the challenge  of a  violation of  the Ohio                                                                    
state  constitution and  the  federal establishment  clause.                                                                    
The  prior  year  the  firm  had been  involved  in  a  case                                                                    
involving  Arizona's tax  credit  for  donations to  private                                                                    
scholarship funds that  provided scholarships to individuals                                                                    
planning  to use  private education.  He  relayed that  both                                                                    
school choice cases had been  victories for the firm, but it                                                                    
had lost several other cases.                                                                                                   
                                                                                                                                
Mr. Kromer relayed that the  firm was approximately 20 years                                                                    
old;  it advised  people working  on drafting  school choice                                                                    
legislation and  helped defend the legislation  if it passed                                                                    
and  was  challenged. He  relayed  that  most school  choice                                                                    
programs  were challenged  by teachers'  unions and  allies,                                                                    
but the  firm had been  successful in defending most  of the                                                                    
cases. He explained  that in the firm's cases  the state was                                                                    
the primary  defendant and the firm  represented parents who                                                                    
intervened  in  the  litigation.   The  institute  had  been                                                                    
involved in  the Milwaukee Program,  which was  the paradigm                                                                    
for   the  urban   programs  that   existed  in   Milwaukee,                                                                    
Cleveland, Washington D.C., and  New Orleans. Other types of                                                                    
school choice  programs had  been developed  in the  past 20                                                                    
years;  there were  seven  or eight  that  were specific  to                                                                    
children  with disabilities,  which typically  had not  been                                                                    
challenged.                                                                                                                     
                                                                                                                                
1:50:36 PM                                                                                                                    
                                                                                                                                
Mr.  Kromer communicated  that the  institute had  typically                                                                    
encouraged  states with  "bad law"  under  the state  Blaine                                                                    
Amendment  to  create  school choice  programs  via  private                                                                    
contributions that the states  encouraged through tax credit                                                                    
legislation.  There were  over  20  different school  choice                                                                    
programs that  involved private schools, which  had resulted                                                                    
in  the firm  gaining expertise  in state  Blaine Amendments                                                                    
because  the  opponents  of school  choice  programs  always                                                                    
preferred to strike a law  down under the state constitution                                                                    
versus the  U.S. Constitution.  He furthered  that opponents                                                                    
were  afraid that  the U.S.  Supreme  Court would  determine                                                                    
that  school choice  programs did  not  violate the  federal                                                                    
establishment  clause  as  long  as  they  were  religiously                                                                    
neutral and did  not encourage the use  of religious schools                                                                    
over other schools.                                                                                                             
                                                                                                                                
Mr.  Kromer   discussed  that   Blaine  Amendments   were  a                                                                    
"peculiar"  development of  the  1800s.  Public schools  had                                                                    
originally  been conceived  and designed  to be  generically                                                                    
Protestant schools,  but not  to reflect  the ideology  of a                                                                    
particular sect.  He expounded  that as an  increased number                                                                    
of  Catholics moved  to  the U.S.  the  Protestants saw  the                                                                    
schools as a way to  "wean" Catholics away from their faith.                                                                    
The Catholic  Church resisted the  efforts and  the required                                                                    
reading  of  the  Protestant bible  in  public  school,  the                                                                    
singing  of  Protestant hymns,  and  the  use of  Protestant                                                                    
oriented text books that "derogated"  the Catholic faith. He                                                                    
explained  that as  a result  Catholics  requested an  equal                                                                    
share  of  public  education   dollars  directly  for  their                                                                    
parochial  schools.  The  Catholics  were met  in  the  Know                                                                    
Nothing  Movement in  the 1850s,  by the  federal government                                                                    
and the Republican Party in  particular, with a rejection of                                                                    
their demands. The result was  that some state constitutions                                                                    
(including Alaska's)  contained language specifying  that no                                                                    
appropriation  "shall  be  made" to  any  sectarian  school,                                                                    
which had  been code  for Catholic.  He expounded  that five                                                                    
current U.S. Supreme Court judges  had recognized in various                                                                    
cases  that  the  federal  Blaine  Amendment  was  an  anti-                                                                    
Catholic proposed enactment.                                                                                                    
                                                                                                                                
Mr.  Kromer continued  to provide  a history  of the  Blaine                                                                    
Amendment.  He delineated  that  in the  1870s  there was  a                                                                    
Republican  effort  to  disenfranchise Democrats  (who  were                                                                    
typically  Catholic).  Republicans  had proposed  a  federal                                                                    
constitutional  amendment  that   would  have  required  all                                                                    
states to abide by the  language of state constitutions that                                                                    
specified  there would  be no  appropriations for  religious                                                                    
sectarian schools.                                                                                                              
                                                                                                                                
1:55:24 PM                                                                                                                    
                                                                                                                                
Mr. Kromer  detailed that  the amendment  had failed  to get                                                                    
the two-thirds majority  required by a narrow  margin in the                                                                    
U.S. Senate, but it had  passed "overwhelmingly" in the U.S.                                                                    
House, which  meant that the  backers had to vote  to impose                                                                    
the  law through  enabling legislation  on  any new  states;                                                                    
therefore, all  new states after  the 1876  Blaine Amendment                                                                    
failure had Blaine Amendments  in their state constitutions.                                                                    
Alaska's constitution specified that  no money shall be paid                                                                    
from public  funds for the  direct benefit of  any religious                                                                    
or other  private educational institution; the  language was                                                                    
narrower than  was typical and  was intended  to distinguish                                                                    
between  direct aid  to religious  schools and  indirect aid                                                                    
that  benefitted private  school students.  He relayed  that                                                                    
the exception had been accepted  in the Zelman case in 2002.                                                                    
He  viewed  the  legislation  as  an  effort  to  bring  the                                                                    
interpretation of  Alaska's constitutional language  in line                                                                    
with the interpretation of the federal religion clauses.                                                                        
                                                                                                                                
Mr. Kromer  pointed out that  Alaska's constitution  had its                                                                    
own  general religion  clauses under  Article  1, Section  4                                                                    
titled: "Freedom of Religion."  The language was essentially                                                                    
a  verbatim copy  of  the federal  religion  clauses in  the                                                                    
First Amendment that  read "no law shall  be made respecting                                                                    
establishment of  religion or prohibiting the  free exercise                                                                    
thereof."  He   interpreted  that  the  language   had  been                                                                    
included  as an  effort to  convey that  Alaska would  use a                                                                    
standard similar to the U.S.  Constitution. He detailed that                                                                    
there  was a  three part  test for  an establishment  clause                                                                    
violation under the First  Amendment that required religious                                                                    
neutrality and  no excessive entanglement  of the  state and                                                                    
religion  (Lemon v.  Kurtzman). He  stated that  language in                                                                    
Alaska's  constitution  implied  that  the  state's  supreme                                                                    
court should use a similar  test when it addressed issues of                                                                    
a violation of establishment of religion principle.                                                                             
                                                                                                                                
1:59:04 PM                                                                                                                    
                                                                                                                                
Mr. Kromer  believed the impetus  for the legislation  was a                                                                    
result of bad decisions made  by the state supreme court. He                                                                    
explained  that the  court had  interpreted the  language of                                                                    
the two  provisions proposed for amendment  very broadly and                                                                    
in a  way that had been  rejected at Alaska's 1955  and 1956                                                                    
constitutional  conventions; a  movement  had  been made  to                                                                    
expand the  language to include direct  and indirect benefit                                                                    
for any  religious or private  institution, but it  had been                                                                    
rejected.  In  the  Matthews  v.  Quinton  and  the  Sheldon                                                                    
Jackson  cases  the  Alaska Supreme  Court  had  essentially                                                                    
included indirect in its interpretation  and had stated that                                                                    
aid to students indirectly  benefited colleges or elementary                                                                    
schools that  were chosen.  The court  had decided  that the                                                                    
state was  aiding the private  religious schools if  aid was                                                                    
provided  to  students  for transport  to  the  schools.  He                                                                    
opined that the  aid was indirect. He relayed  that the U.S.                                                                    
Supreme Court had determined that  providing aid to students                                                                    
who chose  a private  religious school was  not the  same as                                                                    
providing a  direct grant  to the  school (Zelman  and other                                                                    
cases);   the   court   recognized  a   difference   between                                                                    
incidental  and  direct aid.  He  noted  that under  certain                                                                    
circumstances   direct  aid   could  run   "afoul"  of   the                                                                    
establishment clause; however, indirect  aid to students had                                                                    
been accepted for at least 10  years in the K-12 context and                                                                    
had never been challenged in the post-secondary context.                                                                        
                                                                                                                                
Mr.  Kromer believed  that the  problem  with supreme  court                                                                    
decisions  was that  the courts  had the  final word  unless                                                                    
overruled by  the people  or a  subsequent decision  made by                                                                    
the  same  court.  The  resolution  proposed  to  amend  the                                                                    
language of the particular  provisions to change the outcome                                                                    
with  respect to  student assistance  programs  in order  to                                                                    
bring state constitution in line  with the principles of the                                                                    
federal religion clauses.                                                                                                       
                                                                                                                                
2:03:30 PM                                                                                                                    
                                                                                                                                
Mr.  Kromer  explained  that  in 1968  the  New  York  State                                                                    
Supreme Court  had reversed an earlier  decision because its                                                                    
state   constitution   included  "direct"   and   "indirect"                                                                    
language;   therefore  it   was   determined  that   student                                                                    
assistance programs representing incidental  aid were not in                                                                    
violation of the provision; any  benefit to schools selected                                                                    
by  students who  received aid  was incidental.  He detailed                                                                    
that South  Carolina previously had similar  language to New                                                                    
York that prohibited appropriations  that provided direct or                                                                    
indirect benefits  to private  religious schools.  The state                                                                    
had  struck  down  a  higher  education  student  assistance                                                                    
program  based on  the indirect  language; subsequently  the                                                                    
legislature  and the  population  had  removed the  indirect                                                                    
language and a new assistance  program had been enacted. The                                                                    
New York  and South Carolina  cases were examples  of states                                                                    
that   had   removed   language   prohibiting   "beneficial"                                                                    
programs.                                                                                                                       
                                                                                                                                
Co-Chair  Stoltze  remarked  that  the  testifier  would  be                                                                    
invited to speak  to the committee again during  the wrap up                                                                    
portion   of  the   bill   at  a   later   date.  He   asked                                                                    
Representative Keller  to provide the committee  with a copy                                                                    
of the state decisions discussed by Mr. Kromer.                                                                                 
                                                                                                                                
Representative Keller  opined that the Alaska  Supreme Court                                                                    
had allowed  Alaska's Blaine Amendment  to tie the  hands of                                                                    
the  legislature  in  its ability  to  enact  school  choice                                                                    
reform initiatives. He cited the  Sheldon Jackson case as an                                                                    
example; the  legislature had tried  to assist  with tuition                                                                    
in the  past. The passage  of the bill would  allow Alaskans                                                                    
to  decide  whether  to  free  the  legislature's  hands  to                                                                    
encourage school choice in the state.                                                                                           
                                                                                                                                
Co-Chair  Stoltze  requested  Representative  Keller  to  be                                                                    
available  for  questions from  legislators.  Representative                                                                    
Keller agreed.                                                                                                                  
                                                                                                                                
HJR  16  was  HEARD  and   HELD  in  Committee  for  further                                                                    
consideration.                                                                                                                  
                                                                                                                                
2:07:03 PM                                                                                                                    
AT EASE                                                                                                                         
                                                                                                                                
2:08:33 PM                                                                                                                    
RECONVENED