HOOTCH v. ALASKA STATE-OPERATED SCHOOL SYSTEM

OPINION

BOOCHEVER, Justice.

This appeal originates from a suit on behalf of 28 Native Alaskans of secondary school age against the Alaska State-Operated School System (hereinafter ASOSS) and certain officials of the Alaska Department of Education. The appeal seeks to compel the State of Alaska to provide secondary schools in appellants' communities of residence.

The term "Native" is generally recognized in Alaska to refer to citizens of Aleut, Eskimo and Indian heritage.

Appellants styled the suit as a class action, defining the class as persons of secondary school age, Native Alaskans and citizens of the United States and the State of Alaska living in communities where there are no public secondary schools or which lack daily transportation to such schools. Appellants estimate that the class includes 3,000 Alaska Natives living in 145 communities ranging in population from 2,104 (Barrow) to 36 (Igiugig and Rampart). Because there is no accurate data on the number of children not in school, the size of the class is speculative. In superior court, appellees moved to dismiss the claims as to the class. The court did not rule on the motion. Alaska R.Civ.P. 23 which regulates class actions, does not explicitly require a trial judge to determine whether an action may be brought as a class action. The Alaska rule is substantially the same as the original text of Federal Rule of Civil Procedure 23. In 1966, however, the Federal rule was revised to require at least a provisional determination by the trial court on the maintenance of a suit as a class action. We believe that the approach embodied in revised F.R.C.P. 23 is sound.
We are also, however, in agreement with the statement of counsel for appellees that determination of the status of this suit as a class action is irrelevant to the legal claim involved in Count I. Thus, absent a determination by the superior court as to maintenance of the suit as a class action under Alaska R.Civ.P. 23, the final judgment is binding solely upon the named appellants. See Carracter v. Morgan, 491 F.2d 458 (4th Cir. 1973). It is, however, appropriate for this court to treat appellants as a class for purposes of this opinion. See, e.g. Maxwell v. Wyman, 458 F.2d 1146 (2d Cir. 1972).

The named appellants live in the rural western Alaska villages of Emmonak, Kwigillingok and Kongiganak, with populations of 439, 148 and 190 respectively. Each of these villages is inaccessible by automobile. At the time this lawsuit was filed, there were no public secondary schools (encompassing grades 9-12) in these communities. Each appellant had, however, the opportunity to attend school at state expense (including transportation, room and board when away from home) in state-operated regional schools, the state boarding home program or Bureau of Indian Affairs' schools. Participation in state-funded correspondence study was also available. Appellants have attended school in Anchorage, Bethel, Kodiak, Sitka, Unalakleet, Wrangell and Chemawa (Oregon). Since the inception of the suit, the state has established a secondary school in Emmonak as part of its on going program to provide area and local schools.

Appellants' amended complaint in the superior court advanced four claims for relief: Claim I — denial of the right to education contained in Alaska's Constitution, statutes and regulations; Claim II — denial of equal protection of the laws by racial discrimination; Claim III — denial of equal protection by geographical discrimination and Claim IV — redress for past discrimination. After discovery was completed, appellants moved for summary judgment on Claim I, arguing that there were no genuine issues of material fact and that the legal framework of education in Alaska guaranteed appellants the right to attend secondary school in their communities of residence.

Alaska Const. art. VIII, § 1.

AS 14.03.080(a), AS 14.14.110 and .120 (a).

The regulations then in effect, and relied upon by plaintiffs, were 4 AAC 06.020(a) and 4 AAC 06.025(2).

Superior Court Judge James K. Singleton, Jr. denied appellants' motion for summary judgment on the grounds that neither the constitutional, statutory nor regulatory provisions relied upon by appellants compelled the state to provide secondary education in appellants' communities of residence as a matter of law. Appellees subsequently moved to dismiss Claim I for failure to state a claim upon which relief could be granted. The court treated the motion as one for summary judgment as provided by Alaska R.Civ.P. 12(b) and granted the motion. Thereafter, the superior court severed Claim I from the remainder of appellants' claims pursuant to Alaska R.Civ.P. 54(b) to enable an immediate appeal to this court.

Appellants present this court with three arguments in support of their contention that they are entitled to attend secondary schools in their communities of residence. First, they assert that public school attendance is a fundamental right guaranteed to all Alaskan children by art. VII, § 1 of the Alaska Constitution. They continue that the right may not be impaired unless the abridgment is justified by a compelling state interest. Second, they contend that specific regulations promulgated by the Alaska Board of Education require provision of local secondary schools. Finally, appellants maintain that the denial of the opportunity to attend secondary schools in their home communities deprives them of "equal rights, opportunities and protection" in violation of art. I, § 1 of the Alaska Constitution.

In the superior court, appellants also argued that AS 14.14.110(a) and AS 14.14.120 (a) confer upon a student the right to attend secondary school while living at his usual home as long as his community of residence has a "critical mass" of at least eight children eligible to attend elementary and secondary school. AS 14.14.110(a) provides:

(a) When necessary to provide more efficient or more economical educational services, a district may cooperate or the department may require a district to cooperate with other districts, state-operated schools or the Bureau of Indian Affairs in providing educational services or in establishing board and tuition arrangements, arrangements for the exchange of pupils or teachers, or other similar arrangements. However, if a cooperative arrangement requires pupils to live away from their usual homes, the school board shall provide classes within the attendance area when there are at least eight children eligible to attend elementary and secondary school in the attendance area. (emphasis added)

AS 14.14.120(a) reads:

(a) When there are fewer than eight children eligible to attend elementary and secondary school in a district, the school board may declare the district inoperative for that school year.

We agree with the superior court that neither statute requires that a school come into being if a minimum of eight children are eligible to attend.
The portion of AS 14.14.110 referring to eight children is in the nature of a proviso to the remainder of the statute, which deals with cooperation among school districts. This proviso must be strictly construed and not turned into a rule of general application. Application of Babcock, 387 P.2d 694, 696 (Alaska 1963); State v. American Can Co., 362 P.2d 291, 297 (Alaska 1961). AS 14.14.120(a) states when an existing district may cease its operations; there is no indication that a school need be started where a certain number of potential students are available.

PART I

Provision for education of Alaskan children is governed in the first instance by art. VII, § 1 of the state constitution which directs the legislature to establish and maintain a system of public schools. Pursuant to this constitutional mandate, the legislature has enacted Title 14 of the Alaska Statutes. General supervision over the public schools of the state is vested in the Department of Education which is headed by the State Board of Education. Pursuant to AS 14.12.010, operation of the public schools is the responsibility of school districts.

AS 14.07.020(1), AS 14.07.075.

Each home rule city and first-class city outside a borough is a city school district; each organized borough is a borough school district. The vast area outside the city and borough school districts is the state-operated school district. City and borough school districts are under the management and control of local school boards. Selection of school sites within city and borough school districts is, however, the responsibility of the borough assembly or city council.

AS 14.12.010.

AS 14.12.020.

AS 14.14.060(d) provides:

The borough assembly shall determine the location of school buildings with due consideration to the recommendations of the borough school board.

AS 14.14.065 provides for analogous procedures.

The state-operated school district is administered by ASOSS, a state corporation. The board of directors of ASOSS is appointed by the governor subject to the requirement of AS 14.08.030 that at least six of the nine members be from rural areas. AS 14.08.090 requires the ASOSS board of directors to

ASOSS was created by AS 14.01.010 et seq. Its operations are financed primarily by state funds appropriated by the legislature. AS 14.12.020(c).

establish, maintain, operate, discontinue, and combine state-operated schools where it considers necessary . . . [and to] pay tuition and boarding or transportation costs of secondary school students in cases in which the establishment of state-operated secondary schools is unsound for economic or educational reasons.

The discretion of the board of directors in carrying out these duties is limited only by the statutory requirement that all ASOSS plans "relating to the establishment, discontinuance, or combining of schools" be approved by the Department of Education before they can be implemented.

AS 14.08.100.

Within this systematic scheme, ASOSS and the Department of Education have been endeavoring to devise a workable solution to the problems of educating rural Alaskans. The approach to the problem has shifted several times in recent years with reference to the desirability of smaller schools in rural areas as opposed to larger regional schools.

Immediately following statehood, the basic concern was to ensure that as few Alaskan children as possible would be required to leave the state for schooling. The primary goals were to provide education within the state and in rural areas wherever possible. See generally the Governor's Committee on Education, "An Overall Education Plan for Rural Alaska", ii-iv (October 1, 1968 rev.). In the mid-1960's, the state contracted with the Training Corporation of America to conduct a feasibility study on size and location of regional schools. Following the direction of that study, the pattern of development of secondary schools involved large regional high schools. See Alaska State Board of Education, "The Big Picture on Small Schools", 1 (1972). In the early 1970's, the emphasis on large regional high schools was re-evaluated. A new policy was adopted favoring local and smaller area schools. Id. at 6, 8, 10.

With this background we turn to appellants' assertion that art. VII, § 1 of the Alaska Constitution establishes a right to secondary schools in their communities of residence. Initially, it is important to maintain the analytic distinction between this and the equal protection arguments. In relying on an art. VII, § 1 right to education, appellants are concerned with the content of the constitutional right to education and are seeking enforcement of that specific constitutional right. They are not, as they are in the equal protection arguments, comparing their status with that of other secondary school age children and seeking elimination of any disparities.

Art. VII, § 1 of the Alaska Constitution provides in part:

The legislature shall by general law establish and maintain a system of public schools open to all children of the State. . . .

Appellants argue that the words "public schools open to all children of the State" create a right to be educated in their villages.

In denying that the constitution creates such a right, appellees focus on the phrase, "[t]he legislature shall by general law establish and maintain a system of public schools," as the heart of the constitutional provision. They stress that the legislature has complied with the constitutional command by enacting Title 14, by which school location decisions have been properly delegated to borough assemblies, city councils and the board of directors of ASOSS.

We have construed art. VII, § 1 on two previous occasions. In Macauley v. Hildebrand, we noted that art. VII, § 1 was a "constitutional mandate for pervasive state authority in the field of education". Then, in Breese v. Smith, a case involving the constitutionality of a junior high school grooming regulation under which a student was suspended because his hair was too long, we stated that "article VII, section 1 . . . guarantees all children of Alaska a right to public education". Thus, this court has recognized the dual aspect of the constitutional provision. It imposes a duty upon the state legislature, and it confers upon Alaska school age children a right to education.

491 P.2d 120 (Alaska 1971). In that case, we held that a home rule borough may not, by ordinance, compel its school system to participate in centralized accounting where a state statute required the approval of the school board regarding such matters.

491 P.2d at 122. We went on to say:

That the legislature has seen fit to delegate certain educational functions to local school boards in order that Alaska schools might be adapted to meet the varying conditions of different localities does not diminish this constitutionally mandated state control over education.

Id. at 122.

501 P.2d 159 (Alaska 1972).

501 P.2d at 167. Although our opinion in Breese was grounded in part upon art. VII, § 1, the primary basis for the decision was that the grant of "liberty" in art. I, § 1 of the Alaska Constitution encompasses the fundamental personal right of students in public schools to select their hair styles without governmental direction, in the absence of a compelling governmental interest.

We are now called upon to ascertain whether the constitutional right to education includes the right to attend secondary school in one's community of residence. In urging this interpretation upon the court, appellants rely primarily upon the difficulty in exercising the right to education caused by the absence of local secondary schools. They emphasize the word "open" in art. VII, § 1 as the source of the asserted right to local schools. The argument is stated in appellants' brief:

School attendance by [appellants] is conditioned on their giving up, for many months during this critical period of their development, contacts with their families, their villages, and their cultural heritage. The must live in dormitories or board with strangers in an alien environment hundreds of miles from home. A school for which "tuition" is forfeiture of home and family life . . . cannot be deemed an "open" school.

Appellants seek a definition of the constitutional provision in terms of a particular set of asserted facts. They seek to demonstrate that the right to education includes a right to local secondary schools because the right to education is unduly burdened and rendered hollow without the subsidiary right.

In determining the scope of a constitutional right, the focus of the court's inquiry is not, however, on the question of whether there is a burden on the exercise of that right. We must look to the intent of the framers of the constitution concerning the nature of the right itself, the problems which they were addressing and the remedies they sought. While prior practice and the framers' purposes are not necessarily conclusive, an historical perspective is essential to an enlightened contemporary interpretation of our constitution.

See Hunt v. Eddy, 150 Kan. 1, 90 P.2d 747, 751 (1939); Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549, 555 (1934); Smith v. St. Paul, M. M. Ry. Co., 39 Wn. 355, 81 P. 840, 841 (1905); see also 16 Am.Jur.2d Con. Law § 65, at 241.

See Baker v. City of Fairbanks, 471 P.2d 386, 396 (Alaska 1970).

At the time statehood was attained, a dual system of public education existed in Alaska. The United States Department of the Interior's Bureau of Indian Affairs (hereinafter BIA) operated schools for Alaska Natives; Alaska's Territorial Legislature and Department of Education provided schools attended primarily by non-Natives. The dual system was a vestige of two Federal statutes that were enacted in the early part of this century. Under a 1917 amendment to the Alaska Organic Act, the Territorial Legislature was empowered "to establish and maintain schools for white and colored children and children of mixed blood who lead a civilized life in said Territory. . . ." In the other statute, originally passed in 1905, the Federal Government assumed responsibility for the education of Alaska Natives in the following terms:

See Darnell, "Systems of Education for the Alaskan Native Population", in Education in the North 293 (F. Darnell ed. 1972); C. Ray, "Alaskan Native Education: An Historical Perspective", 2-3 (October 1973) (unpublished report prepared for the Alaskan Native Needs Assessment in Education Project).

Act of March 3, 1917, ch. 167, 39 Stat. 1131.

The education of the Eskimos and Indians in the district of Alaska shall remain under the direction and control of the Secretary of the Interior, and schools for and among the Eskimos and Indians of Alaska shall be provided for by an annual appropriation, and the Eskimo and Indian children of Alaska shall have the same right to be admitted to any Indian boarding school as the Indian children in the States or Territories of the United States.

Although efforts were made to unify the two public school systems prior to statehood, these attempts were largely ineffective, principally because the Territory could not assume the financial responsibility for all of Alaska's schools.

C. Ray, note 20, supra at 7-12.

The pre-statehood pattern of high school locations, which is reflected in the current system of secondary education, was generated by the dual school system. High schools in incorporated cities enrolled both Native and non-Native students who lived in these populated areas. Secondary education for students living in rural areas of the state was limited or nonexistent. Rural Native students were presented with the choice of either staying at home and foregoing secondary education or leaving home and attending Mt. Edgecumbe, a BIA boarding school established for Native students. When enrollment at Mt. Edgecumbe eventually exceeded the school's capacity, the BIA began admitting Native Alaskans to Indian boarding schools in other states. Hundreds of Alaska Natives entered boarding schools in Chemawa, Oregon and Chilocco, Oklahoma.

Id. at 17.

The problem of creating a viable, unified system of public education in this state confronted the framers of our constitution when they convened in 1955. In the December 15, 1955 Report of the Committee on Preamble and Bill of Rights to the Constitutional Convention, it was suggested that the public education provision of the article on Health, Education and Welfare be adopted in these terms:

The state shall establish and maintain by general law a system of public schools which shall be open to all children of the state. . . .

The reference to all children of the state seems to have been designed to elevate to constitutional status the consensus that Alaska's dual system of education should be ended. The above-quoted provision was referred to the Committee on Style and Drafting, which presented its report to the Convention on January 27, 1956, through Committeeman James Hurley of Palmer:

MR. HURLEY: . . . The first change from the [original version] embodied the second word . . . which . . . said that the "state" shall do something and we have suggested that the term "legislature" be used in order to pinpoint it to a particular division of the state government. . . . I think there were no changes other than that . . . other than perhaps reversing the order of one or two words. . . .

In view of this history, we conclude that art. VII, § 1 was intended to ensure that the legislature establish a system of education designed to serve children of all racial backgrounds.

Appellants' argument that the source of a right to local schools derives from the word "open" in art. VII, § 1 does not withstand analysis. The general rule in constitutional construction is to give import to every word and make none nugatory. The word "open" in art. VII, § 1 is an integral part of a unitary phrase "open to all". To parse the phrase "open to all" into its component parts and find that each conveys a distinct right goes too far. Section 1 has no meaning with the word "open" deleted. Some word is needed to complete the thought of the section. Inclusion of the word "open" does not appear to impart a different meaning to the section than would "for all", "available to all", or "providing education to all". The phrase "open to all" is a unitary phrase embodying a requirement of nonsegregated schools.

State v. Evans, 46 Wn. 219, 89 P. 565, 567 (1907); Lamborn v. Bell, 18 Colo. 346, 32 P. 989, 991 (1893); see also 16 Am.Jur.2d Con. Law § 67, at 245.

Comparison of the education provision in the Alaska Constitution with those in other states is also instructive in interpreting art. VII, § 1. The phrase "public schools open to all children of the State" in art. VII, § 1 is rarely found or paraphrased in other state constitutions.

A few state constitutions contain language which is similar to the phrase found in the Alaska provision. Art. XII, § 1 of the New Mexico Constitution states that a "uniform system of free public schools sufficient for the education of, and open to, all the children of school age in the state" shall be established and maintained. In addition, both art. VIII, § 147 of the North Dakota Constitution and art. 10, § 1 of the Utah Constitution require their respective legislatures to establish a uniform public educational system which "shall be open to all the children of the state". See also Model State Constitution, art. IX, § 9.01 (National Municipal League 6th ed. 1963); Arizona Constitution, art. XI, § 6; and former art. XI, § 7 of the Montana Constitution. Art. X, § 1 of the 1972 Montana Constitution replaced the aforesaid provision, and it no longer contains language similar to the Alaska provision. Similarly, art. 8, § 1 of the Indiana Constitution and art. VIII, § 1 of the South Dakota Constitution require the creation of uniform and general public school systems which are "equally open to all". Finally, a somewhat larger number of state constitutions direct the state legislature to provide for free public education for "all students", "all children" or "all persons" between certain ages residing within the state. See, e.g. Ark.Const., art. XIV, § 1; Neb.Const., art. VII, § 6; New York Const., art. XI, § 1; Okl.Const., art. XIII, § 1; Va.Const., art. VIII, § 1; Wash.Const., art. IX, § 1.
The appellants have not cited, nor has independent research revealed, any cases from these or other jurisdictions in which the words "open to all" have been given the construction the appellants urge this court to adopt with regard to art. VII, § 1 of our constitution. Those case which do interpret this or similar language are distinguishable. See generally Logan City School Dist. v. Kowallis, 94 Utah 342, 77 P.2d 348 (1938); Starkey v. Board of Ed. of Davis County, 14 Utah 2d 227, 381 P.2d 718 (1963); State v. School Dist. No. 1 of Fergus County, 136 Mont. 453, 348 P.2d 797 (1960).
As noted infra, most state constitutions contain provisions to the effect that the legislature shall establish and maintain a general, thorough, uniform and efficient system of free, common or public schools. See Index Digest of State Constitutions, Legislative Drafting Research Fund, at 361-419 (1959). For example, art. IX § 2 of the Washington Constitution reads in part: "The legislature shall provide for a general and uniform system of public schools." See also Cal. Const., art. 9, § 5.

The dissent relies in part on the rather broad dicta found in Logan City School Dist. v. Kowallis. In that case, the Utah Supreme Court was called upon to interpret art. 10, § 1 of their state constitution which like the parallel Alaska provision requires the state legislature to establish a uniform system of public schools "which shall be open to all children of the State." There the Utah court merely held that a child who lives in one school district and chooses to attend school in another may constitutionally be required to pay a nonresident fee, at least in cases where the child had the option to attend a suitable school located in his own district. The court observed that the state constitutional provision required the state to provide all children of the state with schools "as reasonably convenient for attendance as is practicable". Without necessarily embracing that court's construction of its analogous education provision as being applicable to our own, we note only that the Utah court limited its notion of reasonable convenience by the concept of practicability and that what may be practicable in one state may not necessarily be practicable in another state. To the extent the language referred to by the dissent does constitute authority for any broader construction, we find it unpersuasive.

94 Utah 342, 77 P.2d 348 (1938). See note 16 of the dissent.

77 P.2d at 351.

A more typical state constitutional provision is that of Oregon: "The Legislative Assembly shall provide by law for the establishment of a uniform and general system of Common schools". The word "uniform" found in most state constitutions would seem to prohibit the tailoring of educational programs to different geographic areas or groups in a state. The Arizona Supreme Court, sitting en banc, discussed that state's uniformity clause as follows:

The present school laws do provide for a system which is statewide and uniform. The minimum length of the school year is provided in the constitution, and the legislature has provided for a means of establishing required courses, qualifications of teachers, textbooks to be used in common schools, and qualifications of professional nonteaching personnel. A.R.S. § 15-102.

Oregon Const. art. VIII, § 3 (emphasis added).

Shofstall v. Hollins, 110 Ariz. 88, 515 P.2d 590 (1973).

Unlike most state constitutions, the Constitution of Alaska does not require uniformity in the school system. The phrase "open to all" appears in lieu of the customary uniformity requirements. It seems likely that the drafters of the constitution had in mind the vast expanses of Alaska, its many isolated small communities which lack effective transportation and communication systems, and the diverse culture and heritage of its citizens. Since educational programs may well require special design to confront the divergent problems presented, a uniformity requirement in the Alaska education system might well prove unworkable. Thus, in art. VII, § 1, the Alaska Constitution appears to contemplate different types of educational opportunities including boarding, correspondence and other programs without requiring that all options be available to all students.

See Egan v. Hammond, 502 P.2d 856, 865 (Alaska 1972).

This interpretation given to art. VII, § 1 in no way implies that classifications and disparities violative of equal protection may be permitted.

The foregoing construction of art. VII, § 1 conforms to the responsiveness of the constitutional convention to the unique problems in the vast rural areas of Alaska. For example, art. X, § 6 created the unorganized boroughs to meet those problems. In discussing the proposed art. X, Mr. Rosswog stated:

The committee, being from all over Alaska, knowing its problems in the thinly populated areas and in the smaller cities and also in the larger cities, we tried to fit the proposal to each section. . . .

In the debate over art. X, it was recognized that the state would provide different and sometimes lesser services in the unorganized borough than would be provided in the organized boroughs. Provision of educational services in ASOSS without establishing local secondary schools conforms to the constitutional convention's understanding and intent to permit flexibility in the state's provision for services in the unorganized areas.

Id. at 2652.

Cf. Groh v. Egan, 526 P.2d 863, 875 (Alaska 1974), quoting Egan v. Hammond, 502 P.2d 856, 865 (Alaska 1972).

We have previously noted that different approaches are appropriate to meet the educational needs in the diverse areas of the state. In Macauley v. Hildebrand, we approved a legislative enactment designed to ensure that "Alaska schools might be adapted to meet the varying conditions of different localities". The need for flexibility in providing educational services has also been recognized by the United States Supreme Court. In San Antonio Independent School District v. Rodriguez, the Court stated:

491 P.2d 120 (Alaska 1971).

Id. at 122.

411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

The very complexity of the problems of financing and managing a statewide public school system suggests that "there will be more than one constitutionally permissible method of solving them," and that, within the limits of rationality, "the legislature's efforts to tackle the problems" should be entitled to respect. (citation omitted).

We conclude that art. VII, § 1 permits some differences in the manner of providing education. Reference to the events preceding the ratification of the Alaska Constitution further bolsters our conclusion. The delegates to the constitutional convention were aware that the principal Alaska opposition to statehood was based on arguments that the territory could not afford the costs of a state government. While endeavoring to draft the best possible constitution for the new state, the practical considerations of securing ratification of that document had also to be considered. To have proposed that the new constitution mandate secondary schools in all rural communities having eight school children would have been considered preposterous at that time in view of the grave financial problems which confronted the new state. Moreover, if the delegates had intended that secondary education be provided in each rural community, they certainly would have expressed themselves more directly and clearly than by use of the phrase "open to all".

Claus M. Naske, An Interpretative History of Alaska Statehood, 76, 78, 98, 101, 116, Alaska Northwest Publishing Co.

We subscribe to the doctrine that our constitution is not a static document and that its provisions must be construed in light of changing social conditions. Here, however, we are being asked to insert into the constitution a concept not present in the original document and departing so far from its original terms and meaning as to constitute a radical invasion by the judiciary into an area specifically delegated by the very provision in question to the legislature. To do so is beyond our powers.

Breese v. Smith, 501 P.2d 159, 169 n. 43 (Alaska 1972); Whitton v. State, 479 P.2d 302, 310 (Alaska 1970); Baker v. City of Fairbanks, 471 P.2d 386, 401-03 (Alaska 1970).

The nonjudicial nature of this problem is emphasized by appellants' concession that the right to local education is not absolute, and that when less than eight school age children reside in a community, the right to attend school locally must yield to the reality that there are too few children present to constitute a school. The decision as to when it is feasible to establish local secondary schools is peculiarly legislative and executive in nature.

If the right to local secondary schools admittedly does not exist when there are less than eight students, we may well ask whether it exists when there are 10, 12 or 40 students.

The question of the desirability of local secondary schools is related not only to the number of students residing in a community, but also to complex policy questions bearing on the quality of education afforded children by small local secondary schools as opposed to larger regional schools or urban schools attended while boarding in private homes. These issues are also inappropriate for judicial resolution.

See page 799, supra as to the shifts that have taken place in education theory with references to the type of secondary schools best suited for rural Alaska.

It may well be that the exercise of the right to education is burdened by certain disadvantages. The existence of disadvantages is not, however, tantamount to a violation of the constitutional provision dictating that the right to education be open to all. The contemplation in art. VII, § 1 of some differences in the manner of providing education sanctions some disadvantages. So long as they are not violative of equal protection, the nature and proper means of overcoming the disadvantages present questions for the legislature. Appellants have been afforded a right to education, although they are not furnished a right to attend secondary schools in their communities of residence. We cannot find this latter right mandated by the constitution, absent a valid equal protection claim.

We note that the legislature in establishing its system of education has made provision for the establishment of local secondary schools.

PART II

Appellants argued that even if the constitution does not grant them the right to attend local secondary schools, regulations of the State Board of Education provide for such an educational opportunity. In 1972, the State Board of Education, pursuant to its statutory authority, promulgated two Department of Education regulations, 4 AAC 06.020 and 4 AAC 06.025, which were in effect at the time this action was commenced. Section 4 AAC 06.020 provided in pertinent part:

According to appellants, these regulations were promulgated as part of the settlement in Sage v. State Board of Education, C.A. No. 71-1245 (Third Judicial District), a suit by five Kivalina ninth grade students to compel provision of a secondary school in their home village. In November 1971, the Alaska Attorney General in an opinion letter to Dr. Marshall L. Lind, Commissioner of Education, had concluded:

It would be proper under current statutory authority for the Department of Education to promulgate uniform regulations setting forth the circumstances in which "schools" must be provided in rural areas of school districts.

Under court order and relying upon the Attorney General's opinion, the Department of Education developed the regulations to, in the words of an Alaska State Board of Education publication, "reaffirm the right of Alaska school children to be educated in their home communities". "The Big Picture on Small Schools", at 11.

SECONDARY EDUCATION

(a) Every child of school age shall have the right to a secondary education in his community of residence, whether in a city district, a borough district, or the state-operated school system. (b) This section does not apply if a child

(1) has daily access to a secondary school by being transported a reasonable distance; . . . . (emphasis added)

Regulation 4 AAC 06.025 adopted Minimum Standards for Offering Secondary Education which described in great detail the village secondary programs to be provided as a function of the enrollment. The Minimum Standards contained the following prefatory comments:

1. Every child of school age shall have the right to an elementary-secondary education in his district or community of residence.

2. No child of school age shall be required to live away from his usual home in order to obtain an education.

Appellants argued below that the regulations were valid and that, as stated in the Department of Education's Notice of Proposed Changes in the Regulations, they "establish[ed] the right of a school age pupil to secondary education in the community of his residence". The superior court considered only the language of 4 AAC 06.020(a). That court found it ambiguous and adopted appellees' view that the phrase "whether in a city district, a borough district or the state-operated school system" was used in apposition to "community of residence". Under this interpretation, the right to education in one's "community of residence" would mean that a student living within the state-operated school district would have the opportunity to attend a school somewhere in the unorganized borough.

The superior court's interpretation rendered the regulations consistent with the precise wording of AS 14.03.080(a), one of the statutory sections cited by the Department of Education as authority for the regulations. AS 14.03.080(a) provides:

A child of school age is entitled to attend public school without payment of tuition during the school term in the school district in which he is a resident subject to the provisions of AS 14.14.110 and AS 14.14.120. (emphasis added)

While this appeal was pending, the State Board of Education repealed 4 AAC 06.025 and repealed and re-enacted 4 AAC 06.020(a), which now reads in pertinent part:

Every child of school age has the right to a tuition free public education in his district of residence. (emphasis added)

The modification of the regulations was prompted, at least in part, by Judge Singleton's ruling in this case. Appellees urge this court not to consider the former regulations because they are no longer in effect. Appellants, on the other hand, cite the repeal of regulations during the pendency of this appeal as evidence of the Board's bad faith and recalcitrant attitude, and suggest that this court is not precluded from ordering relief based on the 1972 regulations.

On November 14, 1973, the State Board of Education unanimously passed the following resolution:

WHEREAS the Superior Court in denying plaintiffs' motion for Summary Judgment on the first count of the Hootch case found that 4 AAC 06.020(a) and 4 AAC 06.025 are ambiguous on their face; and

WHEREAS the Superior Court resolved that ambiguity in a manner consistent with the intent which the Board and the Department of Education had when these regulations were originally promulgated; and

WHEREAS leaving these regulations in the Administrative Code in their current ambiguous form may lead to additional confusion,

NOW THEREFORE BE IT RESOLVED that the Department shall proceed forthwith to initiate proceedings to amend these regulations so as to render their language consistent with the above mentioned ruling of the Superior Court and the intent of the Board. . . . .

Pursuant to this resolution and after compliance with the notice and hearing provision of the Alaska Administrative Procedure Act, the regulations were modified in early July 1974.

Under appellants' interpretation of the Department of Education's prior regulations, the state would be required to provide local secondary schools in accordance with the Minimum Standards of 4 AAC 06.025. When 4 AAC 06.025 was repealed, appellants could no longer point to any legal commitment to supply them with the schools they seek.

The alleged loss of benefits does not, however, necessarily establish that the State Board of Education acted arbitrarily in modifying the regulation. An administrative agency may modify or repeal its regulations so long as such action is neither arbitrary nor unreasonable. Therefore, if the State Board of Education's action was not arbitrary or unreasonable, appellants cannot derive from the prior regulations a right to local secondary schools.

Fraenkel v. United States, 320 F. Supp. 605, 608 (S.D.N Y 1970); Lawson Milk Co. v. Benson, 187 F. Supp. 66, 74 (N.D.Ohio 1960); Curly's Dairy, Inc. v. State Dep't of Agriculture, 244 Or. 15, 415 P.2d 740, 744 (1966).

Nader v. Bork, 366 F. Supp. 104, 108 (D.D.C. 1973); Kelly v. United States Dep't of Interior, 339 F. Supp. 1095, 1100 (E.D. Cal. 1972); Oil Shale Corp. v. Morton, 370 F. Supp. 108, 123-24 (D.Colo. 1973).

In Kelly v. United States Department of Interior, the Secretary of the Interior had deleted a section of his department's regulations which had previously allowed certain Indian claimants to qualify for a share in the distribution of the assets of a dissolved California Indian rancheria. The court held the deletion invalid because the department failed to comply with applicable notice and hearing provisions, but observed that "a change in the regulations resulting in an alleged loss of benefits does not in itself show that the Secretary has acted arbitrarily". We agree with this observation. Nonetheless, to avoid the taint of arbitrariness, the State Board of Education must have a reasonable basis for promulgating the revised regulations.

339 F. Supp. 1095 (E.D.Cal. 1972).

Id. at 1100.

In Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1970), this court defined the scope of review of administrative regulations as follows:

Thus, where an administrative regulation has been adopted in accordance with the procedures set forth in the Administrative Procedure Act, and it appears that the legislature has intended to commit to the agency discretion as to the particular matter that forms the subject of the regulation . . . First, we will ascertain whether the regulation is consistent with and reasonably necessary to carry out the purposes of the statutory provisions conferring rule-making authority on the agency. . . . Second, we will determine whether the regulation is reasonable and not arbitrary.

See also Kingery v. Chapple, 504 P.2d 831, 835 (Alaska 1972).

The Board's stated reason for the revision was to eliminate any ambiguity and to reflect accurately the original intention of the Board. There is nothing arbitrary or unreasonable in modifying a regulation for such a purpose. No facts have been presented to us to justify our disregarding the stated reason for the changes. We therefore hold that the State Board of Education did not act arbitrarily in repealing 4 AAC 06.025 and repealing and re-enacting 4 AAC 06.020(a). It follows that this court cannot grant relief based on regulations that are no longer in effect.

See note 48 supra. We note further that the subject matter of the old regulations might be outside the scope of the Department of Education's discretion. In order to be valid, an administrative regulation must be directed toward a subject over which the agency has discretion, as delegated by the legislature. AS 44.62.030; Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971). See also Boehl v. Sabre Jet Room, Inc., 349 P.2d 585 (Alaska 1960). For example, under 4 AAC 06.025(2), which the State Board of Education has since repealed, secondary facilities would be required in villages where there were at least 33 eligible secondary school students. Since school location decisions are committed by statute to borough assemblies [AS 14.14.060(d)], city councils [AS 14.14.065] and the board of directors of ASOSS [AS 14.08.090(12)], the State Board of Education may well have been acting outside the scope of its authority in promulgating 4 AAC 06.025(2).

The validity of the present 4 AAC 06.020 (a) is not before us on this appeal, and we decline to pass judgment on this issue.

PART III

The contention is made that appellants are treated differently from other Alaska school children in that they are deprived of the right to attend secondary schools in the communities in which they reside. The majority of Alaska children attend secondary schools without the necessity of living away from home. It is therefore argued that art. I, § 1 of the Alaska Constitution which guarantees to all citizens "equal rights, opportunities and protection" forbids such abridgment of appellants' "fundamental rights unless justified by a compelling state interest".

We are initially confronted by appellees' contention that the equal rights issue is not properly before this court because it was not raised by appellants in Claim I of their complaint or in their memoranda filed with the superior court. We find that appellees are correct insofar as Claim I makes no mention of a violation of the equal rights provision of art. I, § 1. The Alaska constitutional equal rights argument was, however, briefed in connection with the motions for summary judgment on Claim I. Judge Singleton, in his scholarly opinion, did not refer to the equal rights argument either for the reason that the contention was not made a part of Claim I or due to his holding that Alaska's constitutional requirement of a system of education open to all had been met by the legislature and the implication from that holding that no fundamental right to education was violated.

We would normally feel compelled to rule upon the equal rights claim because it was thoroughly briefed in the proceeding before the superior court and has been raised in appellants' statement of issues filed herein. Claims directly involving the application of art. I, § 1 of the Alaska Constitution as well as the equal protection clause of the Federal Constitution are, however, still pending in the superior court. Due to the overlapping nature of the claims and the desirability of developing the factual issues normally so vital to resolution of an equal rights claim, we have decided not to rule on the equal rights issues at this time. We prefer that the matter first be determined by the trial court after the presentation of such evidence as may be desirable.

We note, however, that this issue was not mentioned in the points on appeal originally filed by appellees. A point omitted from appellants' statement of points on appeal ordinarily will not be considered by this court. Appellate Rule 9(e) provides:

The appellant shall serve and file with his designation a concise statement of the points on which he intends to rely on the appeal. The court will consider nothing but the points so stated. On motion, and for cause, the statement of points may be supplemented subsequent to the filing of the designation of record.

See Miller v. City of Fairbanks, 509 P.2d 826, 829 (Alaska 1973); Moran v. Holman, 501 P.2d 769, 770 n. 1 (Alaska 1972); Steward v. City of Anchorage, 391 P.2d 730, 732 (Alaska 1964). This rule is often raised in conjunction with the principle that a point appellant has failed to raise in the trial court will not be considered on appeal. Sumner Development Corp. v. Shivers, 517 P.2d 757, 763 (Alaska 1974); Moran v. Holman, 501 P.2d 769, 770 n. 1 (Alaska 1972). We do not find that the record below or the statement of points on appeal, when considered with the statement of issues contained in appellants' brief, fails to inform the opposing parties or the court of the matters in issue. See Steward v. City of Anchorage, 391 P.2d 730, 732 (Alaska 1964); Fairview P.U.D. No. 1 v. City of Anchorage, 368 P.2d 540, 542 (Alaska 1962); cf. Dworkin v. First National Bank of Fairbanks, 444 P.2d 777, 780 (Alaska 1968); Rego v. Decker, 482 P.2d 834, 841 (Alaska 1971).

See Milliken v. Bradley, 418 U.S. 717, 744, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069, 1091 (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627, 637 (1972); Burton v. Wilmington Parking Authority, 365 U.S. 715, 722-23, 81 S.Ct. 856, 860-861, 6 L.Ed.2d 45, 50-51 (1961); Gautreaux v. Chicago Housing Authority, 296 F. Supp. 907 (N.D. Ill. 1969), aff'd, 436 F.2d 306 (7th Cir. 1970); King v. Alaska State Housing Authority, 512 P.2d 887, 892 (Alaska 1973); El Cortez Hts. Res. and Prop. Owners Ass'n v. Tucson Housing Auth., 10 Ariz. App. 132, 457 P.2d 294, 295-96 (1969).

Our disposition of this appeal in this manner is by no means intended to disparage the weighty nature of the claims presented. We have great empathy for the problems of Native people confronted by an alien culture and the Hobson's choice created by the requirement that their children reside away from home in order to further their education. We are heartened by the fact that Alaskans have voted for substantial infusions of funds to provide for local secondary schools in rural areas. We also note that the legislature and State Department of Education have been implementing local secondary school programs actively since the date that this case was filed. Like the trial court, however, we believe that resolution of the complex problems pertaining to the location and quality of secondary education are best determined by the legislative process. We shall not, however, hesitate to intervene if a violation of the constitutional rights to equal treatment under either the Alaska or United States Constitutions is established.

Affirmed and remanded.

ERWIN, J., not participating.

Prior to the filing of the original complaint in this action, steps had been taken to provide a secondary school at Emmonak and a number of other rural, predominantly Native communities with approximately $20,300,000.00 derived from a bond issue authorized by ch. 170 SLA 1970. An additional $16,000,000.00 was authorized by approval of a second bond issue in 1972 (ch. 195 SLA 1972). Ch. 142 SLA 1974 authorized an additional $40,337,000.00 bond issue for rural school construction which was approved by the voters in November 1974.

The sensitivity of the legislature to some of the problems involved in Alaska rural education is illustrated by the enactment of AS 14.08.160 whose preamble expresses considerable concern for the viability of Native language and culture. That preamble sets forth the legislative belief that the educational system in Alaska has a responsibility to provide a bilingual program of education in order to strengthen Native culture, enhance student self-image, improve academic performance, and "allow genuine options for Native Alaskan students in choosing a way of life, and facilitate a more harmonious blending of Native Alaskan culture with the mainstream of society".

Additional constitutional arguments have been raised in the briefs of amici curiae which are not treated in this opinion. These arguments were neither briefed nor argued in the court below and are not advanced by appellants in this appeal. It is well settled that courts will not consider issues raised by amici curiae which are not raised by the parties. City of Tempe v. Prudential Ins. Co. of America, 109 Ariz. 429, 510 P.2d 745, 748 (1973); State ex rel. Kvaalen v. Graybill, 159 Mont. 190, 496 P.2d 1127, 1131 (1972); In re Woodward, 14 Utah 2d 336, 384 P.2d 110, 111 (1963); Long v. Odell, 60 Wn.2d 151, 372 P.2d 548, 550 (1962).