Educators Prepare to Sue State Over Charter School Bill

After the Montana Legislature passed two diverging charter school bills, public education advocates plan to fight a proposal that they say would created under-regulated, unconstitutional “community choice” schools.

By Denali Sagner
A jar of pencils in a classroom at Fair-Mont-Egan School in Kalispell on March 10, 2023. Hunter D’Antuono | Flathead Beacon

A month after the 68th Montana Legislature adjourned sine die, signing off on a session charged with efforts to ensure “parental rights” and protect Montana’s children, the fate of legislation aimed at creating charter schools remains uncertain.

Lawmakers this session passed two bills authorizing the creation of charter schools — making Montana the 46th state to permit the independent, publicly-funded schools. The passage of House Bill 549 and House Bill 562 marked the culmination of a years-long battle by “school choice” activists to bring charters to Montana, which they say will offer increased educational options for parents and students.

“Government should never stand between parents and their kid’s education,” Gov. Greg Gianforte said in a May press release lauding the passage of multiple education bills. “We’re empowering Montana parents to choose what’s best for their family and their kids. We’re putting students and parents first in education.”

Yet the road towards the formation of charter schools in Montana remains convoluted, as educators and lawmakers prepare for a legal battle over House Bill 562, a proposal that they allege will funnel public dollars into under-regulated schools that will operate without constitutionally-mandated oversight.

The two “school choice” bills signed by the governor, House Bill 549 and House Bill 562, create diverging paths for the establishment of charter schools in Montana, one of which has garnered the support of school administrators and education organizations, and the other of which has drawn ire from the same groups.

Introduced by Rep. Fred Anderson, R-Great Falls, House Bill 549 authorizes the establishment of charter schools under local school boards, keeping the creation and administration of such schools within the current public education system. Under the measure, community members are able to petition local school districts to create charter schools within their jurisdiction. If the local school board declines the request to create a charter, the petition can be taken to the state’s Board of Public Education.

Charter schools created under House Bill 549 would be required to comply with Title 20 of the Montana Constitution, which outlines regulations for public schools such as teacher certification, health and safety guidelines and curriculum requirements.

Though educators have historically stood in opposition to the creation of charter schools — describing them as unregulated institutions that subvert teachers unions and drain resources from public schools — some of Montana’s most prominent public education groups stood in support of House Bill 549 during the legislative session, and even helped craft the bill.

“We see charter schools not as being set up to be free from regulation, but being free to innovate,” Lance Melton, the CEO of the Montana School Boards Association (MTSBA), said.

Melton said that he has seen a number of “school choice” proposals move through the Legislature in the past that would have created loosely regulated but publicly funded charter schools, proposals he called bad public policy. The decision to work with lawmakers on House Bill 549 came from a desire to settle the battle over charters through the creation of a formula that the state’s public educators could support.

“If we can’t beat them, we better join them. But we better join them right,” Melton said.

“We knew it was coming,” Sue Corrigan, the vice president of the MTSBA Board of Directors and a member of the Kalispell Public Schools Board of Trustees, said about the establishment of charter schools in Montana.

Corrigan said that MTSBA wanted to “be on the ground floor” and “drive the ship” as the state navigated creating charters. Under House Bill 549, she added, communities could create schools catered to their specific needs, while maintaining the assurance that the independent schools would follow the guidelines set out by the state.

Yet House Bill 549, which ultimately passed the Legislature by a slim margin with both Democratic and Republican support, faces an opponent in a competing bill that imagines a starkly different future for charters in Montana.

House Bill 562, introduced by Rep. Sue Vinton, R-Billings, authorizes the establishment of “community choice schools,” or independent charter schools that are regulated by a seven-member commission appointed by state officials. “Community choice schools” would be overseen by a board of trustees elected only by teachers and parents of students at the school, as opposed to the public school board elections held for any other school district.

Proponents of House Bill 562 characterized the legislation as a way to ensure complete community control over schools and increase what they described as a lack of transparency and choice in Montana’s education system.

Rep. Braxton Mitchell, R-Columbia Falls, a member of the House Education Committee who voted for House Bill 562, said that the bill “goes back more to the intent of community choice schools.”

Mitchell said that parents in the Flathead Valley “want to make sure that they have kids learning what they’re supposed to be learning” rather than, as he described, being “indoctrinated.”

“Parents want their kids at a specific school to make sure that they receive an education and nothing more,” Mitchell said, adding that “they’re putting all of this pride stuff in the schools.”

The Columbia Falls lawmaker characterized “community choice schools” as a way for parents to exercise greater control over curriculum choices, a demand he said he has seen in his district.

For public education advocates, however, House Bill 562 would create a system that uses taxpayer dollars to fund schools that operate outside of the public eye. Beyond that, critics call it a violation of the state Constitution altogether.

“Basically, it’s a private school in disguise, and the only thing that makes it public is the receipt of public funding,” Melton said about the charter school formula outlined in House Bill 562, calling it “completely unconstitutional.”

Under the umbrella of the Montana Quality Education Coalition (MQEC), a number of education groups — the Montana School Boards Association, the Montana Federation of Public Employees, School Administrators of Montana, the Montana Rural Education Association and the Montana Association of School Business Officials — are preparing to sue the state over the passage of House Bill 562, on the grounds of two main provisions they deem unconstitutional.

Under the Montana Constitution, public schools must be overseen by an elected school board, which is chosen by any qualified voter who lives in the district. Under House Bill 562, only parents and teachers associated with a charter school would be permitted to vote in school board elections, despite the charter’s receipt of taxpayer dollars, a phenomenon Corrigan called “taxation without representation.”

 “It would exclude any other qualified electors in the area where the charter school is located,” Rob Watson, the executive director of School Administrators of Montana said, adding that the charter school boards would “not representative of the voters in the region where the charter school exists.”

MQEC also intends to sue the state on what it describes as the bill’s violation of the constitutional regulations outlined for publicly funded schools in Title 20.

“562 has a blanket waiver of every state and local law, rule or regulation. Nothing applies unless it’s specifically found in the bill itself,” Melton said.

Melton said that charters under House Bill 562 would be exempt from critical guidelines that protect students and teachers, such as the state ban on corporal punishment, emergency preparedness regulations and protections for students with disabilities.

Melton and others also warned that House Bill 562 would allow publicly funded schools to teach religious material, a clear violation of the constitutionally guaranteed separation of church and state.

While both House Bill 549 and House Bill 562 have an effective date of July 1, education advocates say the state cannot, and will not, operate both systems concurrently, meaning that one formula will ultimately have to win out over the other.

For Melton and the groups associated with MQEC, the goal is to challenge House Bill 562 in the state court system and, hopefully, cement Montana’s first charter schools under House Bill 549.

Doug Reisig, the executive director of MQEC, said that the organization is preparing a lawsuit to challenge the state before House Bill 562 goes into effect on July 1.

The legal battle against House Bill 562 marks yet another fight over legislation passed by the 68th Legislature, as state courts currently consider challenges to bills that ban on gender-affirming care for transgender minors and restrict abortion.

“562 is not going to survive a constitutional challenge,” Melton said. “When the dust settles, I believe 549 is going to be the vehicle for charter schools in Montana.”

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