03/10/1999 01:27 PM House JUD

SSHB 5 - VOUCHER SYSTEM FOR EDUCATION                                                                                           
                                                                                                                                
Number 0140                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT announced the first order of business is SSHB 5, "An                                                              
Act relating to vouchers for education; and providing for an                                                                    
effective date."                                                                                                                
                                                                                                                                
CHAIRMAN KOTT stated that Article VII, section 1, of the state                                                                  
constitution commits the state to the pursuit of a public, not a                                                                
private institutional school system.  It is there in black and                                                                  
white.  In addition, the constitutional language eliminates                                                                     
substantial barriers that would negatively impact the health and                                                                
welfare of students attending private institutions.  He recognizes                                                              
that the state constitution is somewhat silent on that and                                                                      
construed that meaning by going back to the state constitution                                                                  
convention.  More importantly, Article VII prohibits the direct                                                                 
transfer of state funds for religious or private institutions.  In                                                              
addition, he doesn't believe that in the bill itself the state is                                                               
hostile towards private institutions.  However, he does believe                                                                 
that the bill is not totally neutral.  A voucher system would                                                                   
promote enrollment in a private school setting while negatively                                                                 
impacting the public school environment addressed in Article VII.                                                               
In addition, in relation to how the funds would be spent, he                                                                    
concluded that they would either subsidize or entirely fund those                                                               
students who receive them via the voucher system.  The amount is                                                                
not known because it would be subject to legislative appropriation.                                                             
The money associated with the voucher system and those who would                                                                
use it would be a direct benefit to those institutions.                                                                         
Furthermore, based on how the dispersement of funds would occur, it                                                             
would be hard to get around the idea of directly supporting that                                                                
religious or private institution.  It could not be skirted by                                                                   
giving the money to the parents who in turn would pay the                                                                       
institution.  In conclusion, he noted as he reviewed the state                                                                  
constitution and looked at some of the case law,  this cannot be                                                                
pursued statutorily.  It is an issue that deals with the                                                                        
constitution in scope.                                                                                                          
                                                                                                                                
Number 0442                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked Chairman Kott whether he came across any                                                             
jurisdictions subsequent to the rendering of the state supreme                                                                  
court that are different.                                                                                                       
                                                                                                                                
CHAIRMAN KOTT replied there are a number of cases that were                                                                     
reviewed in other states that were somewhat appropriate, but it is                                                              
more appropriate to look at cases within Alaska.  He noted when                                                                 
looking at those cases, it is important to review the state                                                                     
constitutions to see how they marry up.  In this case, it doesn't                                                               
marry up to the Alaska Constitution.  It was delineated during the                                                              
state constitution convention.  There was a whole argument of                                                                   
funding private institutions and/or where should private                                                                        
institutions be on the pecking order of providing an education for                                                              
the children of the state.                                                                                                      
                                                                                                                                
Number 0593                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI noted her appreciation of Chairman Kott's                                                              
summation.  Anyway she looked at a voucher system, she couldn't                                                                 
come up with anything without directly or indirectly benefitting a                                                              
particular institution.                                                                                                         
                                                                                                                                
Number 0673                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT stated he doesn't see how this particular measure can                                                             
be dealt with in statute.  The correct vehicle is a constitutional                                                              
amendment.  Although the few cases to refer to in Alaska aren't                                                                 
identical, they are identical enough to fail in a challenge based                                                               
on constitutional grounds and to have set a precedent.                                                                          
                                                                                                                                
Number 0722                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES noted her agreement with Chairman Kott's                                                                   
assessment.  She doesn't agree, however, that a constitutional                                                                  
amendment is needed to design a system to allocated monies to each                                                              
child to go to a school somewhere.  The constitution says the state                                                             
should provide an education which means money should be provided                                                                
for every child in the district, not for just those who sign up for                                                             
public school.  The state has a responsibility to ensure that the                                                               
children are educated and parents should have a choice.  Public                                                                 
schools cannot serve every child.  There are children above and                                                                 
below the norm that need a separate kind of education.  She noted,                                                              
if a public school allocates $5,000 per student for a public                                                                    
education, certainly a voucher for $5,000 should not be given                                                                   
because of the fixed and other costs involved in maintaining a                                                                  
school system.  The only portion that should go to a child via a                                                                
voucher should be just the cost that would be eliminated in the                                                                 
public system because that child isn't there anymore.                                                                           
                                                                                                                                
Number 0841                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG noted his agreement with Chairman Kott's                                                                
analysis in terms of the Framers of the state constitution and the                                                              
meaning of the Sheldon Jackson case.  At the time of the state                                                                  
constitution convention, there were a large number of private                                                                   
schools operating in the state.  He is also drawn to the comments                                                               
made by Representative James because he recognizes the state's                                                                  
dilemma.  He also recognizes the dilemma of how the bill was                                                                    
transmitted to the House Judiciary Committee and the desire of the                                                              
House Health, Education and Social Services Committee to get an                                                                 
opinion and for it to be returned to them.  He is also troubled by                                                              
the comments made by the sponsor's staff that any court decision of                                                             
a program would have to be tied to a constitutional amendment.  If                                                              
that is true, not only will a constitutional amendment need to be                                                               
put before the voters but a vehicle to design a program that meets                                                              
the merits of that constitutional amendment will need to be                                                                     
attached to it.  He asked Chairman Kott whether his staff looked                                                                
into the connection between a constitutional amendment and the                                                                  
design of a voucher program.                                                                                                    
                                                                                                                                
CHAIRMAN KOTT replied no.                                                                                                       
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Chairman Kott what the committee will                                                             
do now with the bill.                                                                                                           
                                                                                                                                
CHAIRMAN KOTT replied, as noted at the last meeting, if the bill                                                                
was found to have constitutional problems, it will not go back to                                                               
the House Health, Education and Social Services Committee.  If that                                                             
committee wants to deal with it via a constitutional amendment, it                                                              
will probably come to this committee at some time.  If that                                                                     
committee wants to pursue another bill aside from a voucher system,                                                             
that is fine.  It is his intent to lay the bill aside and he                                                                    
believes it is the intent of the sponsor to withdraw it.                                                                        
                                                                                                                                
Number 1042                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN stated, as a member of the House Health,                                                                   
Education and Social Services Committee, that is the proper course.                                                             
                                                                                                                                
Number 1056                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA noted her agreement with Chairman Kott's                                                                
analysis and thanked him.                                                                                                       
                                                                                                                                
CHAIRMAN KOTT thanked the committee members for spending the time                                                               
on this issue and not getting involved with the public policy                                                                   
question, but looking at it from a constitutional aspect.                                                                       
                                                                                                                                
CHAIRMAN KOTT said the bill will be laid aside.