Legislature(1999 - 2000)

03/03/1999 01:10 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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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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