Lawsuit challenging Montana charter school bill continues, as first steps of new program begin

Lewis and Clark County Courthouse
Posted at 6:33 PM, Aug 25, 2023

HELENA — School districts across Montana are returning to classes for the 2023-24 school year. By the start of the 2024-25 school year, a pair of new laws call for new charter schools to be operating within the state – but one of those laws first faces a challenge in the courts.

Plaintiffs and defendants are now waiting for a Lewis and Clark County district judge to issues a ruling on whether House Bill 562 should remain in effect while a lawsuit challenging it as unconstitutional moves forward. Judge Chris Abbott heard oral arguments Aug. 11 in the case.

HB 562, sponsored by House Majority Leader Rep. Sue Vinton, R-Billings, outlined a framework for charter schools that would operate more autonomously from the existing public school system – as compared to House Bill 549, the other charter school bill the Legislature passed and Gov. Greg Gianforte signed into law this year.

HB 562 would create “community choice schools,” which would be exempted from a number of requirements that traditional public schools must follow, like teacher certification requirements. Schools would be operated by governing boards, eventually elected by parents and guardians of the students attending. A new Community Choice School Commission under the state Board of Public Education could authorize and oversee the schools.

The plaintiffs challenging the law include the Montana Quality Education Coalition – an organization that represents school districts and other public-school groups. The League of Women Voters and several individuals are also part of the lawsuit.

The plaintiffs argue community choice schools would be “privatized” schools and part of a “separate and unequal” education system. They claim the law would undermine the Montana Constitution’s guarantee of a quality public education.

“In fact, HB 562 subverts Montana’s public school system by authorizing and funding schools entirely outside the public education system prescribed by the Montana Constitution,” plaintiffs’ attorneys said in a court filing. “The result is a competing system of individual educational nonprofits made public only by their unchecked receipt of public funds.”

They argue the law violates the authority of local school boards, because choice schools would have separate governing boards, and of the Board of Public Education, because the new commission would act independently of it.

Plaintiffs are asking Abbott for a preliminary injunction to put HB 562 on hold while the suit continues. The law went effect July 1, and it states that the goal is for the first choice schools to open by August of 2024. However, the commission has yet to be set up.

The Montana Department of Justice is defending the law. State attorneys argue the concern that existing public schools could lose resources because of choice schools is “pure speculation.” They said the law would ensure an improvement in educational quality by promoting competition, and that choice schools would be public – simply in a different structure.

In a court filing, the attorneys said choice schools would provide new opportunities for Montana students, including the potential for schools focused on areas like science, math or Indian culture.

“Enjoining such an opportunity for Montana’s students before they ever had the chance to reap the educational benefits would frustrate the intent of the very provisions Plaintiffs cite in the Montana Constitution guaranteeing quality education,” they said.

Defendants said choice schools would have oversight, that local school boards could ask for the power to authorize choice schools themselves, and that the new commission would make regular reports to the Board of Public Education. Plaintiffs argued those were not sufficient protections for the education system.

In June, Abbott decided not to place a temporary restraining order on HB 562, saying it wasn’t necessary because it was likely to be some time before any choice school is authorized and there would be enough time to rule on the request for an injunction first. Because of that, the law is currently in effect.

The first members of the Community Choice Schools Commission have already been named. On Aug. 29, Gianforte selected Trish Schreiber of Helmville as the commission's chair, and Cathy Kincheloe of Whitefish as a member. Both will serve four-year terms.

Superintendent of Public Instruction Elsie Arntzen will also appoint one member of the commission. Her office announced she will begin taking applications from people interested in serving on the commission, through Sept. 8.

The House and Senate leaders from both parties are each allowed to select one member of the commission, bringing the total to seven members.

According to HB 562, the commission members “must collectively possess substantial experience and expertise in board governance, business, finance, education, management, and philanthropy,” and must all “have a demonstrated understanding of and commitment to choice schools as a strategy for strengthening public education.”

The other charter bill, HB 549, would give local school districts the first option to create charters, but allow independent schools to come in if districts don’t move forward on their own. Those schools would have fewer exemptions from the rules for traditional public schools.

EDITOR'S NOTE: This story has been updated to include Gov. Gianforte's appointees to the Community Choice Schools Commission.