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Part Two The Alaska Constitution and Commentary, Art.VII Health, Education, and Welfare

From: The Alaska State Constitution

Gerald A. McBeath

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

(p. 151) Article VII  Health, Education, and Welfare

Article VII is the shortest article in the Alaska Constitution and initially was the least controversial. It requires the legislature to establish a unified K through 12 public school system and establishes the University of Alaska. It also makes general statements pertaining to public health and welfare.

Section 1  Public education.

The legislature shall by general law establish and maintain a system of public schools open to all children of the State, and may provide for other public educational institutions. Schools and institutions so established shall be free from sectarian control. No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.

Section 1 is the framework for Alaska's K through 12 public school system. This system must be “open to all,” which has been defined as accessible to all school-age children throughout the state. The second and third sentences attempt to erect a constitutional wall between public schools and those under sectarian or other private control. Delegate Warren Taylor of Fairbanks (a Masonic lodge member) proposed the section, which is probably the strongest public school constitutional provision.

(p. 152) Most of the discussion on education at the constitutional convention concerned relations between the state and private educational institutions. One question concerned the third sentence—“No money shall be paid from public funds for the direct benefit [of private education]”—and whether such a reference to finance was appropriate. Delegate Victor Fischer noted that section 7 of Article IX included the statement: “No tax shall be levied or appropriation of public money made or public property transferred, nor shall the public credit be used, except for a public purpose.” In his view, this section would cover education as well as all other state expenditures (PACC, 1515). Delegate Rolland Armstrong, who sat on the Health, Education, and Welfare committee, noted that the committee wanted the statement included as part of Article VII “so that it could always be clarified in relationship to this subject” (PACC, 1516).

The second question concerned the support of nonpublic schools. Delegate Jack Coghill sought an amendment to section 1 that would replace the word direct with indirect. He argued, “I believe we should take direct steps to maintain a free public education not encroached upon by any quarter” (PACC, 1516). Other delegates, however, thought that the effect of the word indirect would be radical. They noted, for example, that it might be construed to prevent children at private schools from receiving welfare benefits typically administered through the schools (PACC, 1521). The amendment was defeated by a nearly 2-to-1 vote.

An early supreme court case tested the meaning of section 1 in the context of providing public bus transportation to private school students. Such busing had been provided to Catholic school students in Fairbanks under a 1955 territorial statute. When challenged by the Fairbanks school district, the supreme court held that the statute had been unconstitutional under the territory's Organic Act. Moreover, the new state constitution's prohibitions on providing direct benefits to religious schools precluded the busing of these students at public expense (Matthews v. Quinton, 1961). Although attorneys' general opinions consistently support this finding that the public funding of private school students' transportation is illegal, the state continued to provide it to Fairbanks parochial school students in 1996.

A more recent case tested the same part of section 1. During the 1970s a state grant program gave students attending private colleges the difference between their schools' tuition and that charged by the state university. When challenged, supporters sought to amend the constitution to allow such tuition grants. Voters rejected the amendment, and the high court later invalidated the grant program (Sheldon Jackson College v. State, 1979). Although the grants were made to students, the supreme court found that the students were merely a “conduit” (p. 132) for a direct benefit to the private institutions.

The high court established the relative independence of public schools from local governments in a 1971 interpretation of section 1 (Macauley v. Hilde-brand; see also Article X). The court ruled that the legislative delegation of educational (p. 153) functions to local school boards for the purpose of adapting schools to different localities did not diminish constitutionally mandated state control over education. Such control at the state level prohibited home rule boroughs and other local governments from controlling the accounting of school districts.

Although the state legislature, under the terms of section 1, has established a compulsory attendance law and regulations that support student disciplinary codes, the supreme court has followed a standard of vigilance in matters of the protection of individual constitutional liberties. For this reason, the court has rejected the expulsion of students who differ from the majority, such as by having their own hairstyle, without some compelling interest of safety and order for other students (Breese v. Smith, 1972).

When that interest in an orderly school environment is paramount, however, the supreme court has condoned infringements of students' liberties. In the first Alaska case on school searches of minor students, the high court upheld the search of a Kenai High School student who was suspected of theft. It acknowledged the constitutional question under the federal constitution's Fourth and Fourteenth Amendments. Nevertheless, it ruled that “searches of school children on school premises during school hours by school teachers and administrators” were analogous to the warantless searches upheld in federal and state courts (D.R.C. v. State, 1982).61

Perhaps the major constitutional issue concerning section 1 has been the access of Native Alaskan children to high school programs in their own villages. Prior to statehood, Alaska had a dual school system. Territorial schools operated in urban areas; most of their students were Caucasians. In most rural areas of the state, the greater population of which was Alaska Native, schooling was provided by the federal Bureau of Indian Affairs (BIA). The objective of the framers was to integrate educational services in one statewide system of public education.

The limited resources of the new state, however, delayed the state's expansion of schools in rural Alaska. The new state government established the Alaska State-Operated School System (ASOSS) for unincorporated villages in rural Alaska and gradually assumed control of the BIA schools. By the early 1970s, about half of rural school children still attended BIA schools. Moreover, these were K through 8 day schools. Only one high school was available solely for students of small villages: Mt. Edgecumbe boarding school in Sitka. (Some village youth attended regional boarding schools.) Many Native students were sent out of state for secondary training. While the prospect of oil revenues allowed the state to phase out the BIA day schools, the problem of secondary education was not addressed.

(p. 154) In 1972, a suit was instituted on behalf of 28 Native secondary school youth against the state-operated school system, which sought to compel the state to provide secondary schools in their communities of residence (Hootch v. Alaska State-Operated School System, 1975). The supreme court held that the statutes did not require secondary schools for as few as eight students and that the constitutional right to education did not include the right to attend school in one's own community.

Justice Rabinowitz issued a dissent in this case, noting: “I fail to see how a public school system can be truly ‘open’ to its students where school is not reasonably accessible to them. The word ‘open’ must be construed not only as meaning free of charge, but also as encompassing a right of reasonable access.”

Trial continued on the equal protection and racial discrimination claims, and after extensive negotiations—and with promises of oil riches on the horizon—the state signed a consent degree, Tobeluk v. Lind (1979). This led to the development of secondary school programs in Native villages having both a grade school and at least one high school-aged student. Questions about the cost and effectiveness of these school programs have kept the issue of educational access alive into the 1990s.62

Section 2  State university.

The University of Alaska is hereby established as the state university and constituted a body corporate. It shall have title to all real and personal property now or hereafter set aside for or conveyed to it. Its property shall be administered and disposed of according to law.

This section establishes the state university as the sole system of public higher education in the state. One central statewide administration administers its campuses throughout the state, and it receives public funding through appropriations from the legislature. Further, the university's autonomy is provided for by designation as a corporate institution with title to property, and is hedged only by the legislature's involvement through the final clause of the last sentence, “according to law.” This seeming autonomy, however, has been tempered by a series of court interpretations.

In 1974, the supreme court held that a university employee who was tenured but not holding a faculty position was entitled to a hearing before the termination of employment. This judgment was reached even though university regulations did not allow hearings for nonfaculty employees (University of Alaska v. Chau-vin, 1974).

(p. 155) When action was brought against the university for damage to an aircraft that attempted to land on an experimental floating ice strip maintained by the university, the supreme court treated the university as an arm of state government. The court held that despite the degree of constitutional as well as statutory autonomy that the university possessed, and despite its unique corporate character and its power to sue and be sued, it fell within the ambit of the language of statutes governing suits against the state. Trial by jury was not allowed in actions against the university (University of Alaska v. National Aircraft Leasing, Ltd., 1975).

Legislative actions in 1977 compromised the university's fiscal autonomy and brought it under the purview of Alaska's fiscal procedures and executive budget acts, much as though it were another state agency. When the university protested, the attorney general opined: “The University of Alaska is similar in all or most respects to other state executive agencies for purposes of budgeting and accounting.”63

The clearest evidence of corporate status—the university's property right to lands—has not been supported by judicial interpretation. When the university sued the state because the legislature allowed the sale of a land parcel held in trust for the university and did not provide compensation to it, the supreme court was equivocal. It permitted the land transaction but required compensation for the university (State v. University of Alaska, 1981). Only after extensive negotiations did the state agree to restore the land trust for the university.

Section 3  Board of regents of university.

The University of Alaska shall be governed by a board of regents. The regents shall be appointed by the governor, subject to confirmation by a majority of the members of the legislature in joint session. The board shall, in accordance with law, formulate policy and appoint the president of the university. He shall be the executive officer of the board.

Section 3 is read together with section 2, as it further expresses provisions providing for the university's autonomy and self-regulation. The governor appoints, and the legislature confirms, the governing body of the university, which is its board of regents. It is the board that sets university policy and hires its chief executive officer, the president. Unlike departments of state government with boards, the university regents do not require the approval of the governor when they hire a president.

Even this degree of detail has not provided independence for the state university system. When the university refused to provide the Alaska Public Employees Association with a list of university employees and their locations to (p. 156) be used in a union-organizing campaign, the courts declined to support the university's autonomy. The supreme court held that the university was not immune from compliance with statutes on the disclosure of public records, as it was an “agency” within the meaning of that statute. Further, the university president, although appointed, was a “public officer” under the terms of the disclosure statute and thus was obliged to follow its provisions (Carter v. Alaska Public Employees Associations, 1983).

Section 4  Public health.

The legislature shall provide for the promotion and protection of public health.

This statement expresses the policy intent of the framers to enhance public health through agencies of the state. Unusual in state constitutions, section 4 expresses in constitutional language what is an inherent police power of the state—to safeguard the public health of its citizenry. It has not been subject to judicial interpretation.

Section 5  Public welfare.

The legislature shall provide for public welfare.

Section 5 is a statement of objectives, without definition, which is read together with section 4. Several delegates to the constitutional convention emphasized the state's responsibilities to the less fortunate. They were impressed with provisions of the Hawaii Constitution that made both health and welfare the fundamental, constitutional obligations of the state. It has not been interpreted by the judiciary.


61  In United States v. Biswell (1972), the U.S. Supreme Court upheld a warrantless search of a pawnshop where guns were sold; in Nathanson v. State (1976), the Alaska high court upheld a warrantless search of a boat used for crab fishing. Both cases were analogous because those who were subject to search were traditionally under close supervision.

62  See Fairbanks Daily News-Miner, January 21–26, 1996.

63  Harrison, Alaska's Constitution, 146.