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.