Michael Tavoliero: Education and the public purpose

By MICHAEL TAVOLIERO

The Alaska State Board of Education and Early Development submitted its annual report to the Alaska Legislature in February. 

The report contained three shared commitments: 

• Increase Student Success
• Cultivate Safety and Well-Being
• Support Responsible and Reflective Learners.

Per the report to the Alaska Legislature, “every two years the U.S. Department of Education, through the National Assessment of Educational Progress (NAEP), tests large samples of 4th-graders and 8th-graders in each state (plus the District of Columbia and Department of Defense schools) in reading and mathematics.

“NAEP’s state and nationwide results are presented as average scores on a scale of 000 to 500. The scale scores fall into four categories of achievement as defined by NAEP: advanced, proficient, basic, and below basic. Thus, NAEP also reports the percentage of students who fall within those achievement categories. 

“NAEP’s definition of proficiency is rigorous. In NAEP, basic refers to partial mastery of the subject. Proficient refers to competency in challenging material, including knowledge, application, and analytical skills. Advanced is superior performance. 

“In the highest-scoring state, 49% of its students scored proficient or advanced in 4th-grade reading; 

“In the highest-scoring state, 52% of its students scored proficient or advanced in 8th-grade reading; 

“In the highest-scoring state, 54% of its students scored proficient or advanced in 4th-grade math; and 

“In the highest-scoring state, 47% of its students scored proficient or advanced in 8th-grade math. 

“NAEP summarizes a state’s results by the number of states (plus D.C. and Department of Defense schools) it has scored lower than, statistically the same as, and higher than. 

“In 4th grade math, Alaska scored lower than 46 states, statistically the same as 4 states, and higher than 1 state. 

“In 8th grade math, Alaska scored lower than 37 states, statistically the same as 11 states, and higher than 3 states. 

“In 4th grade reading, Alaska scored lower than 50 states and statistically the same as 1 state. 

“In 8th grade reading, Alaska scored lower than 47 states and statistically the same as 4 states.”

Back in the mid 1950s, the Alaska constitutional convention delegates approached the question of education in the state constitution. The delegates’ goal was exciting. They wanted to build a model state. Their opportunity was not blinded by the lack of precedent. They had 48 other states’ constitutions to use as examples. Their answer to the single most important aspect to sound societal growth, good public order, honest government, and a literate citizenry was simple. 

Alaska’s constitutional education policy is contained in one sentence in Article VII, 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.”

Then, they added two more sentences to Article VII, Section 1. These two sentences prohibited the use of public funds for any religious or other private educational institution. 

“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.”

And, then, they went further with Article IX, Section 6: “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.”

With the ratifying of the Alaska constitution, these sections effectively solidified government education without performance outcome and competition. 

Has Alaska government education constricted its achievements to the latest pre-Covid finding from the U.S. Department of Education, through the National Assessment of Educational Progress (NAEP)?

Regarding Article VII, Section 1, Public Education, of Alaska’s proposed constitution, R. Roland Armstrong, Juneau delegate, stated in 1955, “The Convention will note that in Section 1 that the Committee has kept a broad concept and has tried to keep our schools unshackled by constitutional roadblocks.”

Yet the constitutional roadblock to competitive education was firmly established with the addition of these “Blaine amendments.” 

What is the Blaine Amendment?

In Espinoza et al. v. Montana Department of Revenue et al., June 30, 2020, Justice Roberts, in his majority decision stated, “The Blaine Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general’; many of its state counterparts have a similarly ‘shameful pedigree.’”.

Justice Sam Alito, in his concurring opinion, stated, “… the failed Blaine Amendment to the Constitution of the United States. Named after House Speaker James Blaine, the Congress­man who introduced it in 1875, the amendment was prompted by virulent prejudice against immigrants, partic­ularly Catholic immigrants. In effect, the amendment would have ‘bar[red] any aid’ to Catholic and other ‘sec­tarian’ schools. As noted in a publication from the United States Commission on Civil Rights, a prominent supporter of this ban was the Ku Klux Klan.”

“The Blaine Amendment was narrowly defeated, passing in the House but falling just short of the two-thirds majority needed in the Senate to refer the amendment to the States. See 4 Cong. Rec. 5191–5192 (1876) (House vote); id., at 5595 (28 yeas, 16 nays in the Senate). Afterwards, most States adopted provisions like Montana’s to achieve the same ob­jective at the state level, often as a condition of entering the Union. Thirty-eight States still have these ‘little Blaine Amendments’ today.”

Although, in 1876, the addition of Blaine Amendment to the US Constitution was unsuccessful, it became a state’s constitutional prerequisite for these thirty-eight states to enter the Union. The Blaine amendment was not discussed in the minutes of the Alaska constitutional convention. The minutes did cite other state constitutions having this provision. The delegates agreed that this language was necessary for Alaska’s constitution. 

There is some question as to whether the sections in Alaska’s constitution containing these “little Blaine Amendments” are unconstitutional because of the Espinoza ruling. Today, neither the governor, attorney general, nor the Alaska State Legislature have addressed this. Given the status of Alaska education, at a minimum, shouldn’t a public conversation be warranted?

Notice that although the Alaska Constitution has a section in Article IX on “public purpose”, the Alaska constitutional delegates did not define “public purpose”.  

The single greatest “public purpose” of any society is the dedication of all its resources to the better education of its progeny. My opinion, do you share it?

The boundaries of developing a general definition of “public purpose” by the Alaska Court system have included subsidized loans for students, private businesses, purchasers of residential property, subsidies for personal utility bills, and permanent fund “dividends” (cash payments to all residents). “Public purpose” occupies a lot of tent space, but as the US Supreme Court deferred to legislative judgement about these boundaries, the Alaska Supreme court has also.

For example, in DeArmond v. Alaska State Development Corporation, 376 P.2d 717, 1962 decision, the Alaska Supreme Court said, “… the phrase “public purpose” represents a concept which is not capable of precise definition. We believe that it would be a disservice to future generations for this court

to attempt to define it. It is a concept which will change as changing conditions create changing public needs . . . . Where the legislature has found that a public purpose will be served by the expenditure or transfer of public funds or the use of public credit, the court will not set aside the finding of the legislature unless it clearly appears that such finding is arbitrary and without any reasonable basis in fact.”

Under the banner of economic development through eminent domain, in Kelo v the City of New London, Supreme Court Justice John Paul Stevens in his majority opinion concluded that although the Court did not define public purpose, he concluded. “Where is the line between ‘public’ and ‘private’ prop­erty use? We give considerable deference to legislatures’ determinations about what governmental activities will advantage the public.”

Justice Clarence Thomas, in his dissent of this same case, predicted that “Allowing the government to take prop­erty solely for public purposes is bad enough, but extend­ing the concept of public purpose to encompass any eco­nomically beneficial goal guarantees that these losses will fall disproportionately on poor communities.” 

To paraphrase the closing of this thought by Justice Thomas regarding education, those communities are not only systematically less likely to see their children reach the highest and best strata of educational performance and outcome but are also the least politically powerful in accomplishing this.

If “public purpose” can’t be defined by the courts, then whose job is it?

Michael Tavoliero is a realtor in Eagle River, is active in the Alaska Republican Party and chaired Eaglexit. Part II of this series will be posted shortly.

Michael Tavoliero: Decades later, education reform in Alaska has gotten nowhere