For more than a decade, the Kuspuk School District asked Alaska's education department for the money to fix a rotting elementary school. The school, in the small and predominantly Indigenous community of Aniak in western Alaska, was in deep need of repairs. The nearby Kuskokwim River had flooded the 88-year-old building several times. The walls were moldy. Sewage was leaking into a space below the school's kitchen.
In 2018, the department finally approved the school district's $18.6 million funding request to build a new elementary school wing onto Aniak's middle and high school building, which was owned by the state.
But on Page 4 of the funding contract for the project, Alaska's education department included a catch.
"The State would only build the new school if the local school board agreed to own it when completed," former superintendent James Anderson said in an email to KYUK Public Media, NPR and ProPublica.
In the end, Anderson agreed. He worried that if he didn't, it would jeopardize kids' health and safety. But he said he also worried about the financial and legal implications of the agreement for the school district, where nearly 30% of families live in poverty. If the state owned the building, it would be responsible for repairs and liability. Anderson worried that if the district took ownership of the school, it might be on the hook.
According to a review of deeds and project funding agreements, Alaska's education department has transferred ownership of 54 buildings to rural public school districts since 2003. That's nearly four times as many compared with the two decades prior. That same year, a new clause appeared in the funding agreements that districts sign with the state: In return for the money to make repairs to run-down schools or to build new ones, school districts would have to agree to own the buildings.
Alaska education department spokesperson Bryan Zadalis said in an email that the department didn't have documentation about why the contract language changed. He wrote that "the main clauses of the project agreement are boilerplate language" and were last reviewed by Alaska's Department of Law in 2019.
Seven current or former superintendents representing rural school districts with student populations that are predominantly Alaska Native said it's unclear whether a change of ownership also changes a school district's responsibility to maintain its facilities. The districts can't use tax revenue to pay for education because the communities they serve are unincorporated. As a result, the state is required by law to pay for construction and maintenance in many rural school districts, but it often takes years to secure that money. Because the funds are hard to come by, superintendents have also said they feel pressure to sign the contracts.
"We're all sort of trying to find the best, most optimal use of very lean resources," said Hannibal Anderson, superintendent of the Lower Kuskokwim School District, Alaska's largest rural district, covering an area nearly the size of West Virginia. "There's very little room for negotiation."
Last summer, after nearly two decades, two more Kuspuk district schools, upriver from Aniak, received funding from the state to remedy severe structural problems and serious health and safety risks that the district has reported to the state's education department for years. In both cases, the money wasn't enough to fix everything, but superintendent Madeline Aguillard said it was better than nothing, so she signed contracts that also required the district to own those schools.
"What choice did I have?" she asked.
Over the last year, KYUK, NPR and ProPublica have documented a health and safety crisis inside many rural school buildings across Alaska. Water lines and sewer systems are backing up. Roofs are leaking and foundations are crumbling. Until this summer, at least one school was in danger of collapse. The state has largely ignored hundreds of requests from rural school districts to fix deteriorating buildings. Some of the worst conditions exist at state-owned schools.
Losing Sleep Over Liability
Unlike most other U.S. states, where schools are owned locally, Alaska's education department owns nearly half of the 128 rural schools open in the state today. In most cases, school districts own the remainder.
In an interview, education department staff said shifting ownership from the state to districts cuts red tape and gives districts more local control over how the building is maintained and used.
"We're very much a hands-off landlord, as it were," said Lori Weed, the education department's school finance manager. "So the hope was that districts would take title to sites so that they could have the control, because we've been so hands off."
There are several overlapping Alaska laws governing school ownership. Collectively, they allow school districts to take over supervision of school construction or maintenance projects and to initiate a transfer of ownership. None of those laws require schools to accept ownership; one says a school board "may" take that action.
However, in some cases, the education department's contracts say that school boards "shall" take over ownership in order to receive funding.
Howard Trickey, an attorney who has spent most of his career representing public schools in Alaska, said the state could be misinterpreting the law. "'May' means you don't have to do something," he said. "So to interpret that statute to say it's mandatory is overreaching."
The contract for Aniak's elementary school project says the district "agrees to comply" with several conditions and "shall request title interest of the new facility." According to the education department, districts are permitted to request the removal of this provision, and it doesn't require the transfer in order for a district to receive project funding.
Aguillard said she's still trying to negotiate with the state. Records show Alaska's education department still owns the facilities used for education in Aniak.
Trickey also believes that such ownership changes could create huge risks for rural school districts in Alaska.
"Suppose a facility was in such disrepair and had such life safety issues as inadequate electrical system, and the school catches on fire and burns down and children are injured," Trickey said. "If the state owned it, the state would be liable for those injuries."
A staff member with the education department said there hasn't been a recent case where someone got hurt. "I would argue that if something happens, it's going to become a legal battle," said Heather Heineken, the department's director of finance and support services, who previously was finance director for a district in Alaska's Interior.
Rod Morrison, superintendent of the Southeast Island School District, said he loses sleep over liability in his schools, which suffer from leaking roofs, black mold and, at one school, a nonfunctional fire suppression system. The state transferred ownership of that school, in Thorne Bay, to the district in 1998.
In August, Morrison asked the state to allow him to use $300,000 left over from a state-funded project at another school in his district to address the fire suppression system. In September, Michael Butikofer, facilities manager for Alaska's education department, denied the request, saying it may not be legal. He encouraged Morrison to submit a new application for the funds to fix the suppression system instead.
"When they denied the transfer of the funds or refused to fix my fire suppression system, then I requested the state to take liability of that facility," Morrison said. "Then of course they said no, they're not going to take liability for that."
In a response letter, Butikofer told Morrison that the "ultimate responsibility for day-to-day safety and facility operations lies with the district."
The district has made 17 funding requests to the state since 2009 for the money to replace the system. During a Senate Finance Committee hearing in Juneau this spring, Morrison presented lawmakers with a giant light bulb, blackened by a short in the electrical wiring in the school's gymnasium ceiling. Morrison said it's not a matter of if, but when, a fire might consume the building.
Decades of Contamination
Alaska inherited dozens of schools from the U.S. Bureau of Indian Affairs (BIA) in the three decades after it gained statehood in 1959. During those decades, state officials complained about being burdened with schools that were already in bad shape.
Those schools also came with other liability risks. Some buildings stand on land previously used by the military, where highly toxic and volatile chemicals have been found. And leaking fuel tanks have contaminated the property at dozens of rural schools, according to the Alaska Department of Environmental Conservation.
That was the case with a BIA school in the Bering Sea community of Toksook Bay, which the state acquired in 1990. There, a corroded pipe leaked 5,000 gallons of fuel into the crawl space of a maintenance building associated with the elementary school. The city of Toksook Bay sued both the school district and the state, arguing that the leak contaminated the city's water system, damaged land and caused illness. The state Legislature approved over a million dollars in settlement funds for the city.
In response, the Legislature passed a law in 1997 that limited the state and rural school districts' liability for chemical spills on their land. However, the law does not absolve the state or districts from paying for cleanups, which can cost millions.
Bill O'Connell, who manages contaminated site cleanup for the state Department of Environmental Conservation, said paying for cleanups is harder in rural districts. In municipal school districts, local taxes can help cover the cost. But rural districts rely on the state for nearly all of their funding.
"The money that the school districts get is just to educate the students," O'Connell said. "There's no consideration of contaminated site cleanup. It's really just kind of an unmet need."
He pointed to an old building in Aniak that served the U.S. Air Force during the Cold War as particularly concerning. He said the legacy of highly toxic contaminants started before the building was used for education. The state-owned building, once used by the school district for vocational training, has been demolished, but its foundation stands about 200 yards from the school where kids still take classes everyday. O'Connell said cleanup at the site was officially completed this year, but there are still contaminants below the surface and it is unlikely any new construction will ever be allowed there.
In 1997, the same year the liability law passed in Alaska, a group of parents sued the state over conditions inside rural public schools where their kids spent their days. When the case was settled in 2011, the judge's consent decree called on the state to pay for five new schools. At the time, the state owned four of those buildings. The state paid to build the schools but required each of the districts to accept a transfer of ownership.
Ken Truitt, an attorney who represented the education department in 2003, when the ownership requirement appeared in construction and maintenance funding agreements, said he does not recall being consulted on the contracts or the addition of that language.
Tim Mearig, a former facilities maintenance director for the education department, said that in the early 2000s, leadership believed "it was of no benefit to the state to hold title, and it was a significant benefit to districts to manage their own property."
Mearig said a change of ownership was eventually "baked in" to project agreements.
Some ownership and liability questions come down to what the state's constitution requires. Alaska's education commissioner, Deena Bishop, said the constitution is intended to give local communities maximum control and that the department is following the law. But Trickey, the longtime attorney for Alaska school districts, said the transfers "don't relieve the state of that ongoing, continuing constitutional duty."
"The constitution says the state has a duty to establish and maintain a system of public schools open to the children of the state," he said. "And that just fundamentally and basically starts with adequate schools."
This story is a collaboration from NPR's Station Investigations Team, which supports local investigative journalism, member station KYUK, and ProPublica's Local Reporting Network.
Emily Schwing reported this story while participating in the University of Southern California Annenberg Center for Health Journalism's National Fellowship. She also received support from the Center's Fund for Reporting on Child Well-being and its Dennis A. Hunt Fund for Health Journalism.
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