*1 HOOTCH, minor, Molly her father Hootch, friend James et next al., Appellants,
ALASKA STATE-OPERATED SCHOOL Corporation, SYSTEM, a State al., Appellees. et
No. 2157.
Supreme Court of Alaska.
May 23, 1975.
795 *3 Hoppner, Cooke, Rice,
Christopher R. Reese, Bethel, Hedland, E. Blair & John Corp., Anchorage, Legal Services Stephen E. E. Loon and Eric Van Ed., Cam- .Cotton, Law for Center Mass., appellants. bridge, Gen., Gorsuch, Atty. and Pe- Norman C. Gen., Juneau, Partnow, Atty. Asst. ter C. appellees. City, Hirsch, York on New E. Bertram Assn, Indian American brief Affairs, provide secondary Inc. and Alaska Federation Natives, urging et as amici curiae re- al. communities of residence.
versal. The named live the rural and Daniel Joseph N. deRaismes P. Emmonak, villages western Alaska Sheehan, Boulder, Colo., H. William Ja- Kongiganak, popu- Kwigillingok and Wulf, cobs, L. Anchorage, and Melvin respectively. lations of 148 and 190 for the City, on brief American New York villages Each of these is inaccessible urg- as amicus curiae Civil Liberties Union At the time automobile. this lawsuit was ing reversal. filed, public secondary there were no H, and Robert Middleton R. Collin grades (encompassing 9-12) Anchorage, Wagstaff, had, appellant these Each communities. Psychiatric Chapter the American however, opportunity to attend school *4 Assn., urging curiae rever- et as amici al. expense (including transportation, at state sal. away and board when from home) room schools,
state-operated regional
the state
OPINION
program or
of Indi-
home
Bureau
Participation
an Affairs’
schools.
RABINOWITZ,
J.,
Before
C.
CON-
correspondence study was also
state-funded
NOR,
FITZGERALD,
BOOCHEVER
Appellants have attended school
available.
BURKE, Superior
JJ., and EDMOND W.
Bethel, Kodiak, Sitka,
Anchorage,
Una-
Judge.
Court
lakleet, Wrangell
(Oregon).
and Chemawa
suit,
inception
Since the
the state
BOOCHEVER, Justice.
a
established
Em-
appeal originates
a
This
from suit
part
as
going program
monak
its on
to
on behalf of
Native1 Alaskans of
sec
provide area and local schools.
ondary
age2 against
Appellants’
complaint in
amended
su-
State-Operated
System (hereinafter
School
perior court
four
advanced
claims for re-
officials of the
certain
Alas
ASOSS)
appeal
ka
of Education.
Claim
of the right
I—denial
to edu-
lief:
compel
seeks to
of Alaska
Constitution,3
cation
contained
Alaska’s
generally recognized
1. The term “Native”
is
original
same as the
text of
Federal Rule
Aleut,
in Alaska to refer
citizens
Es-
1966, however,
Civil Procedure 23.
In
heritage.
kimo and Indian
require
Federal
rule was
revised
at least a
provisional
by
determination
the trial court
Appellants
styled
action,
the suit as a class
on the
maintenance
a suit as
class
action.
defining
persons
the class as
approach
We believe that
in re-
embodied
age,
Alaskans
Native
and citizens of
vised
23 is
F.R.C.P.
sound.
the United States and the State of Alaska
also, however,
agreement
We are
with the
living in communities where there
are no
appellees
statement
of counsel
that de
public secondary
daily
which lack
termination
of the status of
this suit as
transportation
Appellants
to such schools.
legal
class action is irrelevant
claim
3,000
estimate that
class
includes
Thus,
involved
Count I.
absent
determi
living
ranging
Natives
population
in 145 communities
by
superior
nation
court as to mainte
2,104 (Barrow)
(Igiu-
nance
the suit
class action under
gig
Rampart).
Because
is
there
no ac-
judgment
Alaska R.Civ.P.
the final
curate data on the number of children not
binding
upon
solely
appellants.
the named
school,
speculative.
the size of the class is
Morgan,
(4th
See
v.
Carracter
nation and Claim IV—redress arguments in support three of their conten complet- discovery After crimination. they tion that are entitled to attend second ed, summary judg- appellants moved ary schools in their communities I, were arguing ment there on Claim First, residence.6 they assert that and that genuine issues material fact right school attendance is a fundamental in Alas- legal framework guaranteed all Alaskan children to at- guaranteed appellants ka They 1 of the Alaska Constitution. in their communities tend continue that not be im of residence. paired abridgment justified unless the Second, compelling they state interest. Single- Superior Judge Court K. James promul specific regulations contend that ton, sum- appellants’ motion for denied Jr. gated by the Alaska Education Board of grounds mary that neither judgment on require constitutional, statutory regulatory nor Finally, appellants schools. maintain com- provisions relied opportunity to attend sec the denial secondary edu- pelled the state ondary their home communities resi- *5 of communities cation “equal opportuni deprives rights, them of Appellees subse- a matter of law. dence as I, protection” of art. ties and in violation § fail- I for dismiss Claim quently moved to 1 of Constitution. relief upon which a claim ure to state court treated the granted. The could be PART I summary judgment as as one for motion and 12(b) by Alaska R.Civ.P. provided chil- of Alaskan Provision for education supe- Thereafter, the granted the motion. first governed in instance dren is the re- I from the Claim art. 1 of the state constitution rior court severed § 14.03.080(a), when there AS and .120 area AS 14.14.110 es within the attendance eight eligible (a). to attend are at least children secondary elementary school the at- and effect, regulations relied 5. The then and area, added) (emphasis tendance upon by plaintiffs, 06.020(a) were 4 AAC 14.14.120(a) reads: AS 06.025(2). and 4 AAC eight (a) there are fewer than When elementary superior eligible court, also ar- to attend children district, gued 14.14.110(a) the school 14.14.120 school in a that AS AS may inoperative (a) a student to at- board declare the district confer year. living tend school while at his for that school community agree superior long res- court nei- as his of We with usual home eight requires into statute a school come mass” at least ther idence has “critical of eligi- eligible elementary being eight if a minimum of children 14.14.110(a) provides: secondary school. ble to attend. AS portion necessary provide referring (a) of AS 14.14.110 more ef- The When proviso eight children is the nature of a more economical educational serv- ficient or may statute, ices, cooperate which deals with the remainder of a district the de- or pro cooperation among may require cooperate partment This school districts. a district strictly disrticts, state-operated turned must be and not viso construed with other schools Applica general application. or a rule of the Bureau of Indian Affairs into (Alaska Babcock, viding tion of services or establish- educational Co., arrangements, 1963) ; v. American Can and tuition ar- board (Alaska 14.14.120(a) exchange rangements pupils AS or existing teachers, arrangements. district cease or other similar states when an However, cooperative operations; arrangement re- there is no indication if quires pupils away certain num to live school need be started where a their usual homes, potential the school hoard shall class- ber of students are available. legislature which directs establish where it considers necessary system public and maintain a schools. pay tuition and or [and to] mandate, Pursuant transportation to this constitutional costs of enacted Title 14 of students cases which the establish- supervision over state-operated Statutes. General ment schools the state is vested in is unsound economic or educational Department Education is reasons. headed the State Board Education.7 The discretion of the board directors 14.12.010,operation Pursuant to carrying only by out these is duties limited responsibility is statutory requirement that all ASOSS school districts. establishment, plans “relating to the dis continuance, combining or city schools” city Each home rule and first-class approved by Department district; of Education borough city is a outside they implemented.12 before can be organized borough borough each area school district. vast outside systematic scheme, Within this ASOSS city borough is the school districts and the of Education have state-operated City school district.8 endeavoring been to devise a so- workable borough districts are under the problems educating lution to the rural management and control local school approach Alaskans. The problem of school sites within boards.9 Selection years has shifted several times recent borough is, city and school districts how- desirability reference of small- ever, as- responsibility borough er in rural opposed areas as sembly city council.10 larger regional schools.13 state-operated district is ad- background appel- With this we turn to ASOSS, corpora- ministered a state lants’ assertion that 1 of the The board of directors ASOSS tion.11 Alaska Constitution establishes a *6 subject appointed by governor secondary schools in their communities of requirement of AS that at least 14.08.030 Initially, important residence. to of the nine rural six members from analytic maintain the distinction between requires areas. the ASOSS AS 14.08.090 equal protection this and the arguments. board to directors VII, relying on to right In art. edu- § discontinue, maintain, establish, operate, cation, appellants are concerned with state-operated and combine right content of the constitutional to edu- 14.07.020(1), 7. AS 14.07.075. AS required possible children as would be to leave goals schooling. primary the state The for 8. AS 14.12.010. within were the state 9. AS 14.12.020. possible. general- in rural areas wherever See ly Education, the Governor’s Committee on 14.14.060(d) provides: 10. AS “An Alas- Overall Education Plan for Rural borough assembly shall determine rev.). ka”, (October 1, ii-iv In buildings location with of school due con- mid-1960’s, the state contracted with the sideration recommendations Corporation Training of America to conduct borough board. study feasibility a regional on size and location of provides analogous AS 14.14.065 Following schools. the direction cedures. study, pattern development that of sec- by 11. ASOSS created was AS 14.01.010 et ondary large regional high schools involved seq. operations primarily by Its are financed schools. See Alaska State Board Educa- appropriated legislature. state funds Big tion, Schools”, “The on Small Picture 14.12.020(e). early 1970’s, emphasis In the large regional high re-evalu- schools was 12. AS 14.08.100. policy adopted favoring ated. A new was Immediately following statehood, 6, 8, the basic local and smaller area Id. at schools. concern was to ensure as few Alaskan VII, ele of that seeking guarantees enforcement section 1 all cation not, right. They are children of Alaska right a specific public constitutional Thus, equal protection argu- education”.17 they are in the this court recog- has as that of nized ments, aspect their status with the dual comparing constitutional provision. imposes age upon children duty a other any disparities. legislature, state seeking upon elimination of and it confers Alas- ka right children a education. VII, of the Alaska Constitution Art. § part: provides We are now called to ascertain whether right the constitutional to educa- law es general shall legislature right tion includes the system a maintain tablish and school in one’s community of residence. the State . . . . open to all urging interpretation upon
In court, appellants rely primarily upon the “public words Appellants argue difficulty in exercising the to educa- the State” all children of tion caused the absence of local second- be educated their vil- create ary They emphasize schools. the word lages. “open” VII, 1 as the source art. § the constitution creates denying that asserted right argu- In to local schools. The phrase, right, appellees on the focus ment is such stated brief: law legislature by general es- shall “[t]he by [appellants] School attendance con- and maintain tablish giving up, many on their ditioned schools,” constitutional heart during period months this critical They stress that the provision. development, their with their contacts com- complied the constitutional villages, families, their their cultural 14, by Title by enacting mand heritage. The must live dormitories dele- properly have decisions been location strangers board with in an alien envi- assemblies, city councils borough gated hundreds ronment of miles home. of ASOSS. the board of directors A school which “tuition” is forfei- ture family of home and life 1 on art. We have construed § “open” cannot be deemed an school. Macauley v. previous occasions. two Hildebrand,14 noted Appellants we of the consti- seek a definition perva particular mandate “constitutional tutional terms of authority field of They state sive set of facts. demon- asserted seek Smith,16 Then, in Breese v. *7 a right education”.15 education includes strate that the constitutionality of a involving the the right a case schools because to local regulation un high grooming unduly is right burdened junior education suspended because subsidiary was a student the der which without rendered hollow “arti- long, we stated was too right. his hair case, (Alaska 1971). constitutionally In that mandated state control over
14. 491 P.2d may not, borough education. a home rule held that we Id. at system 122. compel by ordinance, accounting participate in where centralized (Alaska 1972). 16. 501 P.2d approval required a state statute of the Although opinion in 17. at our 167. regarding the board such matters. part grounded Breese was primary the decision was the basis for say: 15. 491 P.2d at We went on to grant “liberty” I, the of in art. of § 1 delegate That the has seen fit encompasses Constitution certain educational functions to local school personal right of students fundamental might boards in order that Alaska schools public styles schools to select their hair with- adapted varying be to meet governmental direction, conditions out the absence governmental compelling different localities does not diminish this interest. scope determining among for In the Eskimos and Indians right, focus of shall provided constitutional Alaska . not, however, inquiry appropriation, court’s on the annual and the Eskimo question is a of whether there burden on and Indian children of Alaska have shall right. of that must any We look same to be admitted to In- exercise of the consti boarding the intent framers dian school as Indian chil- concerning tution the nature dren in the States or Territories of the problems itself, they which were ad United States.22 they dressing sought.18 and the remedies Although unify efforts were made to practice prior pur framers’ While and the prior school systems two to state- poses conclusive, necessarily are not an hood, attempts largely these were ineffec- perspective is to an en historical essential tive, principally the Territory because lightened interpretation contemporary responsibili- could not assume the financial our constitution.19 ty for all of Alaska’s schools.23 attained, At time was pre-statehood pattern statehood high The system public locations, dual education existed in in the reflected current Department education, system secondary The United gener- Alaska. States Bureau Indian Affairs ated by system. High Interior’s dual school operated incorporated (hereinafter BIA) schools cities enrolled both Natives; Leg Territorial Alaska Alaska’s Native and non-Native students who lived pro populated Secondary of Education islature these areas. edu- primarily by nonN vided schools attended cation for students rural living in areas of system vestige was a atives.20 dual the state was limited or Ru- nonexistent. of two statutes that were enacted ral presented Federal Native students were with the part century. early of this staying Under choice of either at home and fore- Organic going secondary leaving 1917 amendment education home Act, Legislature was em attending Edgecumbe, the Territorial a BIA Mt. powered boarding “to establish and maintain schools school established Native stu- Edge- and colored children and children for white enrollment Mt. dents. When civilized life in eventually of mixed blood who lead a cumbe the school’s exceeded ca- Territory. . .”21 In the pacity, began admitting said other BIA Native statute, passed originally boarding the Fed Indian Alaskans to responsibility eral assumed Government other Hundreds of Alaska Natives states. Chemawa, of Alaska Natives in the education entered Or- Chilocco, following egon terms: Oklahoma.24 viable, problem The education of the Eskimos and Indi- creating unified ans the district of Alaska shall remain in this state control under direction and confronted the our constitution framers of Interior, Secretary of the and schools they when convened the De- Eddy, (October Perspective”, 1973) See Hunt Kan. Historical 2-3 *8 747, (1939) ; Kerby Luhrs, report prepared (unpublished 44 751 v. Ariz. for the Alaskan 208, 549, (1934) ; 555 Smith v. St. Native Needs Education Assessment Paul, Ry. Co., 355, Project). & M. M. 39 Wash. 81 840, (1905) ; P. see 16 841 also Am.Jur.2d 3, 1917, 167, 21. Act March ch. 39 Stat. 65, Con.Law at 241. § 1131. City Fairbanks, 19. See Baker v. 471 27, 277, 7, 1905, 22. Act of ch. 33 § Jan. Stat. 386, (Alaska 1970). 396 619. Darnell, “Systems 20. See of Education Ray, 20, supra 23. C. note at 7-12. Population”, the Alaskan Native in Educa- (F. 1972) ; tion in North 293 Darnell ed. 24. Id. at 17. Ray, C. “Alaskan Education: An Native history, In view of this we IS, con Report the Committee cember VII, that en clude art. 1 was intended to Rights to the Con- and Bill of § on Preamble Convention, system sure that the establish a suggested it was stitutional designed education to serve children of provision of the that the education backgrounds. all racial Health, Education Welfare article on adopted be in these terms: Appellants’ argument that and maintain state shall establish The source of a to local schools derives system by general law VII, “open” from the word art. does § chil- be to all open which shall analysis. general not withstand The rule . . dren of the state. .25 give constitutional construction is to im port to every word and make none all children of the state reference to The VII, nugatory.27 “open” The word art. designed to elevate to have been seems part integral unitary phrase is an of a § that the consensus constitutional status “open phrase “open parse to all”. To should of education Alaska’s dual parts all” find component into its provision above-quoted The ended. conveys right goes a distinct too that each Style and on referred to the Committee n meaning 1 has with the far. Section presented report to the Drafting, which “open” is word deleted. word need Some 27, 1956, through- January on Convention complete thought of the section. ed to Hurley of Palmer: Committeeman James ap “open” of the word does not Inclusion impart meaning to the pear to a different The first ... HURLEY: MR. all”, “for “available to than would em section change [original version] all”, “providing to all”. word . . . which the second
bodied unitary phrase “state” shall do phrase “open said that the all” is a suggested that something have and we nonsegregated requirement of embodying a used in order “legislature” be the term schools. particular division of the pinpoint it to a Comparison the education think government. ... I state in other those with Alaska Constitution than that changes other there were no interpreting art. instructive states is also reversing perhaps than other open “public VII, phrase 1.§ the order one or two words. the State” § to all children of . anything anything so Proceedings or subtract add the Alaska Constitutional (Committee Convention, Appendix V, leave it out. better Pro- felt it was we 1955). Thereafter, posal 7, 15, to amend Metcalf moved Mr. No. December reinserting provision by “which the words Proceedings rejected ; amend- Alaska Constitu- shall be” the Convention (January 27, 1956). (at tional Convention 331 Art. voice vote ment question: (at present adopted Mr. D. Metcalf form Irwin raised in its 1 was then along Hurley, effective, 3320) I ME. Mr. notice the METCALF: later became phrase Constitution, “which shall be” . . . was on Jan- rest of the Alaska you uary Although 3, omitted. Do think that dilutes the that Alaska Consti- meaning people ... or not? ratified tution was April 24, effective did not become it day January ME. HUELEY: . . is [I]t our on which until opinion only necessary, proclama- signed it not was not Eisenhower President anything, probably stronger declaring if but it now Alaska a state. than it was before. We feel v. Evans, group 89 P. 46 Wash. schools are —that the intent of the 27. State Lamborn Bell, (1907) ; 18 Colo. schools be to all (1893) ; state, mandatory, 16 Am.Jur. see also and it P. is not even *9 67, something expect. that 2d at 245. § we It didn’t seem Con.Law 802 necessarily practicable”.30 em- Without rarely paraphrased found or other
1 is
bracing that
court’s construction
state constitutions.28
ap-
being
analogous education
on the rather
part
The dissent relies in
own,
plicable
only
our
we note
that
to
City
Logan
dicta
School
broad
found
limited its
Utah court
notion of reasonable
case,
Kowallis.29
In
Dist.
concept
practicabili-
convenience
Supreme Court was called
to
Utah
ty
may
practicable
what
one
and that
be
interpret
10,
constitu
art.
1 of their state
§
necessarily
practicable
state
be
parallel
provi
which like the
Alaska
tion
language
state.
the extent
another
To
requires
state
to estab
legislature
sion
referred to
the dissent does constitute
system
public
lish a uniform
construction,
authority
any
we
broader
of the
open
“which shall be
to all children
unpersuasive.
find it
merely held
There the Utah
State.”
court
a
child who lives in one school district
typical
provi-
state
A more
constitutional
and
to attend
another
chooses
Oregon:
Legislative
sion is that of
“The
pay
to
may constitutionally
be
required
provide
Assembly
shall
es-
law
fee,
nonresident
least
cases where
sys-
and general
tablishment of a
uniform
option
child had
suitable
tem of Common
word
schools”.31 The
located in his
own district.
found in most
“uniform”
state constitutions
court observed that the state constitutional
prohibit
of ed-
tailoring
would seem
provision required
provide
all
state
programs
ucational
geographic
to different
of the
state with
“as rea
sonably
groups
areas or
The Arizona
state.
convenient
as is
attendance
cited,
language
in
The
dependent
have not
nor has
28.A few state constitutions contain
any
phrase
revealed,
research
is similar
cases
which
found in the
jurisdictions
provision.
XII,
these or other
Alaska
which the
Art.
1 of the New
§
“open
given
words
to all”
Mexico Constitution
system
have been
the con
states that
“uniform
public
appellants urge
struction the
of free
this
schools sufficient for the
court
regard
adopt
of,
open
to,
art.
1
con
§
all
the children
our
interpret
Those caes
of school
stitution.
which do
the state” shall
established
language
distinguishable.
VIII,
addition,
or similar
and maintained.
See
both art.
generally Logan City
147 of the North
School
v. Kowal
§
Dakota
Dist.
Constitution
lis,
(1938) ;
|
art.
1
Utah
94
the Utah
re-
348
Constitution
respective
Starkey
County,
quire
legislatures
their
v. Board of Ed. of
to establish
Davis
public
;
system
(1963)
2d
a uniform
Utah
381 P.2d
educational
Fergus County,
open
“shall be
all
State v. School Dist. No.
the children of the
(1960).
Constitution,
state”. See also
136 Mont.
Model State
art.
IX,
(National
infra,
Municipal League
As
most
§ 9.01
noted
state
con-
6th
constitutions
1963) ;
provisions
legisla-
Constitution,
XI,
tain
ed.
Arizona
the effect
art.
6;
general,
XI,
and former
ture shall establish and maintain
thorough,
§
art.
7 of the Mon-
§
X,
system
uniform and
tana Constitution.
of the
efficient
Art.
§
public
free,
replaced
Montana
common or
Index
Constitution
aforesaid
schools. See
.the
provision,
Digest
longer
language
Constitutions, Legislative
of State
contains
Drafting
provision.
Fund,
(1959).
Similarly,
similar
Research
at 361-419
example,
Washington,
IX 2
§
art.
For
art.
§
Indiana
Constitution
VIII,
part:
legisla-
reads
§
art.
Constitution
South Dakota Constitu-
“The
provide
require
general
gen-
for a
tion
ture shall
and uniform
creation of
uniform
public
systems
“equal-
eral
ly
schools.” See also
which are
Cal.
Const.,
Finally,
larger
§
to all”.
art.
a somewhat
number of state constitutions direct
state
29. 94 Utah
legislature’s
prob
to tackle the
parting
original
efforts
far from its
so
terms and
respect,
(citation
lems”
be entitled
meaning
should
to
as to constitute a radical invasion
ted).42
by
omit
judiciary
specifically
the
into an area
delegated by
very provision
the
question
We conclude that art.
1§
legislature.
beyond
the
To do so is
our
permits some differences in the
manner
powers.
providing
Reference
education.
to the
preceding
nonjudicial
events
ratification of
nature of
problem emphasized
Alaska
by
Constitution further
is
bolsters our
con
delegates
right
conclusion. The
that
to the constitu
cession
to local education is
absolute,
tional
eight
convention were aware that
not
and that when less than
principal
opposition
community,
statehood
children reside
arguments
was based on
territory
right
locally
yield
that
attend school
must
could not afford the
reality
costs of a state
to the
that there are too
chil
few
government.43
endeavoring
present
While
dren
to draft
to constitute a school.45 The
possible
the best
constitution for the new decision as to when it is feasible to estab
state,
practical
secondary
peculiarly
considerations of secur
lish
local
legislative
ratification of that document had
also
and executive
nature.
to be
proposed
considered. To have
question
desirability
the new
secondary
constitution mandate
secondary
only
is related not
schools in all rural
having
communities
residing
the number of students
eight
would have been con
community,
complex policy
but also to
sidered preposterous at that
time in view questions bearing
quality
on the
of educa
grave
problems
financial
which con
sec
by
afforded children
small local
Moreover,
fronted the new state.
if the
ondary
opposed
region
larger
schools as
delegates
had intended that
edu
al schools46 or urban schools attended
provided
cation be
in each rural communi
private
while
homes. These
ty,
they certainly
expressed
would have
inappropriate
judicial
are
issues
also
themselves
directly
more
and clearly than
resolution.
phrase
use
“open
to all”.
may well be that the exercise of
We subscribe to the doctrine that
right
is burdened
to education
cer
our
is not a
constitution
static document
disadvantages. The
of dis
tain
existence
provisions
and that
must be construed
however,
not,
advantages
tantamount
light
of changing social conditions.44
a violation of the constitutional
Here, however, we
being
asked to in
dictating
to education
sert
into the
concept
constitution a
contemplation in art.
all. The
present
original
document and de- VII,
manner
1 of some differences
§
42,
1301,
42. Id. at
ton’s right to secon prior regulations regu- not to consider former court dary schools. longer in ef- they are no lations because hand, cite Appellants, on the other Depart fect. Kelly States v. United *13 during pen- repeal regulations the Interior,53 the of In Secretary of the ment of the dency appeal this as evidence depart of his terior had deleted a section attitude, Board’s bad faith and recalcitrant previously had al regulations ment’s precluded court is not suggest and that this qualify Indian claimants to lowed certain reg- ordering relief based on the 1972 a share in the of the assets for distribution ulations. a Indian ranchería. dissolved California held the deletion invalid because The court interpretation appellants’ the Under appli department comply the failed to with prior regula- Department Education’s hearing provisions, but ob cable notice and tions, required pro- would be state regulations in change served that “a in secondary schools accordance vide local alleged does resulting loss benefits of 4 AAC Minimum with the Standards ' Secretary has in itself show that the not repealed, 06.025was 4 AAC 06.025. When arbitrarily”.54 agree with acted We longer point any le- appellants no could Nonetheless, to avoid observation. supply them with the gal commitment arbitrariness, taint of the State Board they seek. IT RE- BE authority regulations. NOW THEREFORE for Education pro- shall provides: 14.03.080(a) SOLVED AS proceedings forthwith to initiate ceed attend child is entitled to A regulations so as to render payment amend these of tuition school without in, language consistent with the above during their the school term district the school Superior ruling subject and Court mentioned in which he is resident the intent of Board. 14.14.120. 14.14.110 and AS visions and after com- (emphasis added) Pursuant to this resolution hearing provi- pliance with the notice and 14, 1973, Board the State 50.On November sion of the Alaska Administrative Procedure unanimously passed early Act, regulations the fol- modified Education were lowing July resolution: deny- Superior F.Supp. Court States, WHEREAS v. 320 51. Fraenkel United Judg- Summary ing plaintiffs’ for (S.D.N.Y.1970) ; motion Lawson Milk Co. 608 Hootch case Benson, (N.D.Ohio ment on the first count of the F.Supp. v. 74 06.020(a) Dep’t and 4 AAC 1960) ; Curly’s Dairy, found that AAC Inc. v. State face; ambiguous are Agriculture, 06.025 on their Or. Superior WHEREAS Court resolved ambiguity in a manner with consistent Bork, F.Supp. Nader v. De- the intent which the Board and the ; Dep’t (D.D.C.1973) Kelly States v. United reg- partment when these of Education had Interior, F.Supp. (E.D. originally promulgated; ulations were Cal.1972) ; Corp. Morton, 370 Oil Shale leaving regulations (D.Colo.1973). WHEREAS these F.Supp. 123-24 the Administrative their current Code (E.D.Cal.1972). F.Supp. 53. 339 ambiguous form lead to additional con- 54. Id. at 1100. fusion, rights, protection” opportunities for for- have a reasonable basis must Education abridgment bids such “funda- regulations.55 promulgating the revised justified compel- rights mental unless stated reason The Board’s state ling interest”. any ambigui revision was eliminate appellees’ initially areWe confronted in accurately original ty and to reflect equal rights issue is not contention that the nothing the Board.56 There tention of properly this court because it was before modifying arbitrary or unreasonable appellants in I of their not raised Claim purpose. facts for such a No regulation complaint filed with their memoranda justify our presented to us to have been appellees superior court. find that We disregarding stated reason no insofar as Claim I makes correct hold that the State changes. We therefore equal rights mention of violation of arbitrarily not did act Board of Education I, Alaska con- repealing repealing 4 AAC 06.025 was, equal rights argument how- stitutional 06.020(a). fol re-enacting AAC mo- ever, briefed connection relief grant cannot lows that this court I. summary judgment on Claim tions longer regulations that are based opinion, scholarly Singleton, in his Judge effect.57 argument equal rights did refer that the contention either the reason PART III part or due not made of Claim I contention made that *14 re- holding his that Alaska’s constitutional Alaska differently are treated from other open to quirement of education of deprived they of school children that by legislature the and the all met had been in the the holding no fun- implication from that that they communities which reside. violated. was damental to education majority children attend of Alaska second- ary necessity living without the of feel com normally We would argued away from home. It is therefore equal rights the claim pelled to rule I, that art. 1 of the Alaska Constitution in the thoroughly briefed it was § because “equal guarantees to all citizens which and superior court before the proceeding Kelly Zamarello, 906, 911 v. 486 P.2d In order discretion. of Education’s ment scope (Alaska 1970), regulation valid, this court defined the must administrative be an regulations subject as administrative the review toward over be directed delegated by discretion, agency follows: the as has regulation Thus, Kelly 44.62.030; an legislature. where administrative Zamarel v. 1971). adopted (Alaska 906, lo, the been accordance with See 911 486 procedures Room, Inc., forth in the Administrative set 349 P.2d also Boehl v. Sabre Jet Act, appears example, (Alaska 4 and it the Procedure that under For legislature 06.025(2), has intended to to the Board of commit which the State AAO particular agency repealed, fa discretion as to the has since Education subject regula- required, villages matter that forms the of the where be cilities would First, eligible . we tion . . will ascertain least 33 were there regulation whether the deci consistent location Since school students. reasonably necessary carry borough by and the out statute are committed sions purposes statutory provisions 14.14.060(d)], city con- of the councils [AS assemblies ferring rule-making authority agen- on and board of directors [AS 14.14.065] cy. Second, 14.08.090(12)], . we determine will the State [AS of ASOSS regulation may is reasonable and been act whether well have of Education Board arbitrary. authority scope not outside Kingery Ohapple, 06.025(2). promulgating See also v. 504 P.2d 4 AAC (Alaska 1972). present validity of the 4 AAC 57.The 06.020 supra. appeal, (a) 56. See we note We note further that us on this and is not before subject regulations pass judgment matter the old on this issue. decline might scope Depart- be outside the of the g08 appellants’ disparage
has been raised the weighty statement nature of the claims presented. directly great filed in- empathy issues herein.58 Claims We have for the I, volving application problems people by Native confronted equal an Constitution well as alien culture Hobson’s choice protection by requirement clause the Federal Constitu- created that their chil- are, however, supe- pending dren away still reside from home in order overlapping rior court. Due to the nature further their education. areWe heartened desirability by claims of devel- and the fact that Alaskans have voted normally issues vital oping the factual so substantial infusions funds to claim,59 equal rights for local secondary resolution rural areas.60 equal we not also have decided rule on We note prefer rights issues at this time. We of Education have been by implementing the matter first be determined the trial presentation court after of such evi- grams actively since date that this case dence as be desirable. however, court, filed.61 Like the trial complex we believe that disposition appeal this resolution of the
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Rule
ance great laws and the recogni- education both demonstrate our public system how a I fail to see importance tion of the of education to “open” truly to its students where can be our society. required democratic It is reasonably accessible to them. school is not performance public of our most basic “open” be The must construed word responsibilities, even service in the arm- as only meaning charge, free of but also as ed very It is ac- forces. foundation of encompassing reasonable appel- on this record that good cess.16 I conclude citizenship. Today principal it is a 14.08.090(14). 15. See AS home district When their curriculum, vides a school suitable its section 1 of Utah’s constitution Article stage faculty, and facilities for their of edu- states that: growth development, and free and cational open Legislature The shall for the es- them, reasonably and convenient tablishment and maintenance of a uniform attendance, they given are all the Constitu- system public schools, which shall be provides them. assures open State, all children of the Logan City 350-51, 77 P.2d at Starkey approval free from sectarian control. case has been cited with County Logan City Kowallis, v. Board Davis District v. of Education of School School District, 14 2d Utah (1938) Utah P.2d 348 construed the “open” appears in also the educa- word “open” word in the education article of the Arizona, Indiana, Mon- tion articles Supreme Utah Constitution. that case the tana, Mexico, and Dakota consti- New South part: Court of Utah said XI, Article section 6 the Arizona tutions. . . . The is that XI, Constitution and Article section 7 of open all schools shall be ensure that the schools Montana Constitution provided, of the There state. shall be ages “open” to all students “between the state, each child in the a school suitable to twenty-one years” of six while article development training, and as reason XII, New section Mexico Constitution ably practi convenient for attendance age”. Article refers to all “children of school cable, which school such child shall have a Indiana section Constitution to attend. And when the Dakota article section 1 of the South open schools are to all children the same employ phrase “equally Constitution equal terms, compliance has been had all”. with this clause of the Constitution. . . . . .
813 VII, child awakening to cul- Under instrument article section 1 Alas- of the values, Constitution, him for later ka preparing tural must estab- helping him professional training, “public lish and maintain to adjust his environment. all normally to children of the to State”. 14.03.- 070, any days, the legislature provided part: In these it is doubtful expected may to suc- reasonably child be A child . age . who is under the opportuni- if ceed in life he is denied the completed of 20 and has not 12th ty anof education.17 'grade, age. is of school Supreme The Court of the United States judgment This statute reflects the that a recently statements reaffirmed permitted complete the child should be to Brown, abiding respect “expressing an grade twelfth This schools. role the vital of education a free policy by construing would be effectuated Yet, society”.18 present under Alaska’s as “public in article section 1 schools” education, delivering minimum, including At secondary schools. eligible hundreds of are students unable to secondary schools consist should high attend and therefore fail school to facility staffed appropriate complete their I education. do not legal I qualified can see no instructor.20 egregious believe that this situation should perpetuated.19 correspon- be impediment utilization of 493, 691, ; Goldstein, (2d 1963) & at at L.Ed. Freud 347 U.S. 74 S.Ct. 98 261-62 ed. Solnit, Beyond at 880. the Child the Best Interests of (1973). 19 Independent 18. See Dist. San Antonio School imposed Native the strains Because of Rodriguez, 1, 29-30, 1278, 411 v. 1295, 93 S.Ct. U.S. home, away from school students 16, L.Ed.2d 41 Rodri many dropped chil- out of school. have guen: upheld financing Court the Texas school tillages in school dren scheme, and, doing, in so ruled that education compulsory subject Alaska’s are not to purposes right is not fundamental 14.30.010(b)(7) ren- statute. AS attendance analysis protection equal under the clause of inap- compulsory statute attendance ders the Fourteenth Amendment United plicable and six- between a child seven where way States Constitution. The result no years teen grave significance detracts from “the of edu either than two miles from resides more public both to the cation ty”. individual and to our socie transpor a route on which or 30, 1295, U.S. at 93 S.Ct. provided the school authorities . . . . tation is Compare Priest, L.Ed.2d at 41. v. Serrano 584, Cal.Rptr. 601, 615-619, 5 Cal.3d appellants suggest briefs The amicus 1241, (echoing (1971) 1255-59 the Unit integri- right “cultural have fundamental Supreme ed States Court’s sentiments closely argued, ty”, concept, regarding impor Brown “fundamental” sanctity of the home related education). tance of family. right encom- is deemed be This privacy passed derived within points Much toward evidence record First, “penumbras” either from existing system’s ef- deleterious Ninth, Amendments to and Fourteenth fects on members class. Native I, sec- article Constitution United States living away students from home are often I, section 22 of and article adjusting homesick have difficulties Wade, 410 v. U.S. Roe See Constitution. boarding Many boarding schools. students ; (1973) L.Ed.2d 93 S.Ct. drinking, violence, schools have turned to van- Yoder, 92 S.Ct. 406 U.S. Wisconsin v. dalism, attempts. and even suicide See J. (1972) ; Griswold 32 L.Ed.2d Kleinfeld, Long Way Home, A from Effects Connecticut, 85 S.Ct. 381 U.S. High Village of Public Away Schools on Children Smith, ; (1965) Breese v. L.Ed.2d 510 (Center from Home chs. 2-3 for North- my 1972). (Alaska In view P.2d 159 ern Educational & Research Institute for So- analysis 1 of section of article cial, Economic and Governmental Research unnecessary Constitution, I find it psychologically damag- also be in- of “cultural claimed this discuss separate them from their tegrity”. during developmental homes period their adolescent implication “identity in which formation” 20.There should takes regional place. Erickson, Society or the E. Childhood view that *20 materials, especially spe larger
dence course sion of a high school. Education courses, long qualified television, cialized as a al texts, so programmed correspondence supervise proliferation teacher is available to of media and materials study school, have made the high small in .21 many ways, superior large to its Appellees purport- have advanced three counterpart.23 edly legitimate justifications for their fail- Further, it would be difficult for a ure to furnish in schools small, high perform rural schools to possible communities: lower poorly present more than system. Us quality of instruction high small success, modest criteria of academic schools; greater providing cost sec- Dr. Kleinfeld found that between 67 Judith small, isolated, ondary relatively schools percent and 96 boarding of the students in communities; legis- rural and the need for sample her three-part “failed”.24 More lative and administrative discretion in over, provision high appel public viding education. None of these lants’ will communities allow hundreds of can, justifications view, my defeat potential students, who are now not imperative 1 article section school, to resume their education. Nevertheless, Alaska these Constitution. Regarding the troublesome issue three state interests merit careful consider- providing appellants costs of with local ation. secondary schools, it is well settled that the regarding While there is some debate state abridge cannot limit or constitutional pedagogical schools, efficacy high of small rights simply saving money.25 as a means of high today program small “[t]he However, the conclusion that a massive longer need no equated be with an inferior program required school construction fact, education.”22 In an Alaska State may be at variance with The the facts. publication, Big Board of Education The Department of Education’s Small Schools, Picture on fol Small contains the Secondary Schools Administrative Manual lowing observation: indicates Advances technology educational many instances, special or ad- [i]n
over, past decade have shown that the required ditional school facilities will be longer small school need no secondary program at the down, considered as a limited scaled ver- community elementary Existing level. boarding program home need be abandoned. 23. Id. at 17. contrary, On the it be desirable employed following 24. Dr. Kleinfeld cri- village special- student to leave his to obtain (1) teria of “success”: the student larger better-equipped ized instruction stayed program, (2) in the school or did not high My pre- school. construction does not develop moderately severe or severe school- granting options clude to rural (3) problems, related social and emotional high students schools in gained expected at half least amount other communities. boarding reading achievement. In the Bethel g., See, Shinn, Cal.App.2d 21. e. percent In re program, ; 195 home 96 failed the Nome Cal.Rptr. (1961). failed; boarding program, percent AS 44.27.020 provides pertinent part: Anchorage program, and in the home supra percent Kleinfeld, of Education shall See failed. J. (1) program 31, 53, administer the state’s of edu- note elementary cation at See, g., Wylie, e. State 516 P.2d levels, including correspondence . . . (Alaska 1973) ; State, Alvarado v. courses ; City (Alaska 1971) Baker v. of Fair Although preference there is a traditional (Alaska 1970) ; accord, banks, P.2d 386 instruction, correspondence courses, classroom Evans, (D.V.I. F.Supp. Hosier v. properly supervised, when do not fall below 1970) (requiring Virgin Islands Board the minimum standards state’s Education to admit all aliens to program. education government declaring must raise Big Education, required). Alaska State Board the additional funds Picture on Small Schools 18 usually that, erence can house few addition- is so broad if adopted, pupils (secondary al who desire would cause pupils) this court to abdicate its con- their in their home IV, continue stitutional role. Under article section Constitution, “judicial communities. power” of the vested in Alaska’s courts. charged The courts are with the additional instruction [Where] solemn responsibility interpreting *21 spaces provided [,] . . to be have construing laws, including Alaska’s our factors, variety of [djepending on a the constitution, by which we are all bound. single could be a additional facilities constitution, Under Alaska’s highest the as adapted to individualized in- classroom Alaska, court Supreme of the State of the compre- struction, it be or could more Court of Alaska is the final arbiter of the variety a of ed- hensive meaning of Alaska’s Rather constitution. experiences.26 ucational than a judiciary “radical invasion the required, Where new school facilities are specifically delegated by” an area arti- into program be orderly construction would VII, legislature, cle I section be- small, high mandated. rural Once lieve and would our task as characterize place, operating costs for schools are pe- of one delineation of the constitutional will, in all. likeli- local schools delegation rimeters of the educational. hood, comparable per stu- than the be less legislature. Alaska’s To illustrate facilities, primarily of dent cost point, legislature assume that the decreed borne costs will be because room board age must, that all Alaska school children in family.27 by the student’s year, public for nine months a attend Fairbanks, only in schools located Alaska. argued forcefully Appellees have legislative any Is that there doubt such that under article throughout litigation this VII, is of sec- enactment violative article Constitution, VII, of Alaska section tion of Alaska’s constitution ? given complete legislature is that is it regulate the of Alaska’s authority to nature as legislature, as well the executive directly public system, or operate education either con- judiciary, within must through delegated powers.28 Appellees Thus, upon consid- stitutional constraints. argue precise further since language eration of public not mandated that the voluminous Alaska and the Constitution appellants’ bar, include I concluded in the case at have record communities, VII, is proper it not the role of sec- “open” article the word usurp legislative preroga- right courts reasonable contemplates of part tive. I am mindful of the limited While of rural access on the judicial expertise public field of ed- in their age children ucation, appellees’ concept judicial of def- otherwise To hold home communities.29 Education, spoke as Small 26. Alaska was the we “unit” whereof borough. opposed Secondary Manual 20 Administrative Schools (1st Sept. 1971). ed. superior agree determina- court’s 29.I with the genuine of ma- issues there are tion that slightly operating Rough dated cost judgment barring entry summary terial fact high comparisons showing be complaint. I note I Count expensive found alternative the least disposition majority’s my agreement with the Big Education, The Alaska State Board promul- regulations action, specific class Schools Picture on Small Education, and gated by Alaska Board Further, I think equal protection Hildebrand, Macauley issues. In majori- emphasizing context, under (Alaska 1971), it worth in another ty’s government opinion is still unit that “no other court noted protection equal pursue claims. authority”, responsibility their but shares interpretation deprives phasize
results in an that my construction would not significant preclude number of Alaska’s making available alternative population age constitutionally their methods of education to guaranteed right to a education. My analysis “open” children. my employed VII, belief that a which de- construction in article section 1 Alaska’s children access to nies reasonable my Constitution does not reflect public secondary provi- adoption particular schools renders the any theory of educa- sions of section 1 of Alaska’s fully article I cognizant tion. For am that an es- illusory.30 constitution sential concomitant reasonable access to goal ensuring is the reaching the conclusion that the public education, regardless that Alaska’s to local sec- to education includes of where or what methods it is made ondary schools under article section Constitution, available, highest quality. I wish to em- of the Alaska *22 reasonable, specific, of access is devise This constitutional lature is free to n.ot duty, for absolute. The State would have no such as that contained numerical standards single example, says 14.14.110(a) of a the case living provide cooperative arrangement requires pupils child isolation to if a away homes, at the location of his home to live from their usual Admittedly gray areas. wilderness. there are classes within school board shall currently Although villages with established the attendance area when there are least likely operational elementary elementary eight eligible schools would legis- schools, for rural attendance area. locations