Legal Questions, Concerns Dominate OPI Public Session on Charter School Bills

In the first of four virtual discussions focusing on education legislation, the Montana Office of Public Instruction (OPI) on Wednesday night presented a confusing, and at times contradictory, picture of two bills likely to define the future of charter schools in the state.

OPI Superintendent Elsie Arntzen, alongside the office’s chief legal counsel, Rob Stutz, hosted the first session in a series titled, “Local Accountability: How Recent Legislation Affects Families, Students, and Communities.” The Zoom session, which was attended by about 30 people, sought to compare House Bill 549 and House Bill 562, two bills passed during the 2023 legislative session that outline different models for the creation of publicly funded charter schools in Montana.

During the hour-long session, Stutz, who led the discussion, sought to answer a number of increasingly critical questions and comments about House Bill 562 — legislation that has been embroiled in controversy in recent months and is currently the subject of a lawsuit brought by education groups, which names OPI as a defendant. The bill would create “community choice schools” that would be exempt from a number of requirements for Montana schools outlined in the state constitution.

The first of the two charter school bills, House Bill 549, would allow for the creation of public charter schools within local school districts, which would be overseen by the Montana Board of Public Education (BPE) and governed by school boards elected by the general public. The bill has seen the support of prominent groups such as the Montana School Boards Association (MTSBA), School Administrators of Montana (SAM) and the Coalition of Advocates for Montana Public Education, who see it as a way to increase choice while ensuring the regulation of the charter schools.

House Bill 562, a parallel proposal for charters, authorizes the establishment of independent charter schools that are regulated by a commission appointed by state officials. The “community choice schools” are overseen by a board of trustees elected only by teachers and parents of students at the school, as opposed to public school board elections. The schools are also exempt entirely from Title 20 of the Montana Constitution — state regulations that govern teacher certification, health and safety guidelines, curriculum requirements and Montana’s mandatory Indian Education for All (IEFA) program, among other guidelines.

A coalition of educators, parents and advocacy groups earlier this month filed a lawsuit against the state and OPI over the passage of House Bill 562, on the grounds that it unconstitutionally restricts who can vote in school board elections, violating state and federal voting rights, skirts the state’s IEFA provisions and funnels critical dollars away from local school districts.

Attendees on Wednesday night voiced numerous concerns about House Bill 562, asking questions about teacher certification guidelines, background checks and special needs education in “community choice schools.”

During an overview of the two bills, an attendee asked, “What will prevent sex offenders from working in community choice schools?”

Stutz, who largely answered questions by searching for terms in the bill text and sharing his screen with attendees, searched the term “fingerprint” in House Bill 562, pulling up a section that states, “Teachers and other school personnel, as well as governing board members, are subject to criminal history record checks and fingerprinting requirements.”

When asked if the school boards for “community choice schools” will be elected by the general public, Stutz read from a chart by OPI comparing the bills, which he pointed to repeatedly during the session.

“There is a process for the governing boards to be elected,” he said.  

Attendees again raised the issue of closed elections for “community choice” school boards, asking why the general public cannot vote in the school board elections for the schools, and if this is a violation of the Montana Constitution.

Stutz, who is the chief legal council for OPI, said repeatedly that he is “not a legal expert,” and told attendees that “legislation is presumed to be constitutional until it is demonstrated that it’s not.”

“It seems you are skirting the constitutional issues brought up in the legal note on HB 562,” one attendee typed in the chat before asking a question about the oversight of “community choice schools.”

Participants also inquired about teacher certification, given that teachers in “community choice schools” are exempt from existing teacher accreditation requirements.

Stutz and Arntzen spoke about Montana’s teacher shortage, saying that the flexibility in requirements will help fill vacancies and keep schools open.

“The supply issue of teachers as retirements occur is challenged by the demand,” Arntzen said.

Questions over legality came to a head when Stutz was asked about whether or not “community choice schools” will be required to participate in IEFA — a 1999 law that requires all public schools in Montana offer comprehensive education on the cultural heritage of Montana’s Indigenous communities through cooperation with Montana’s tribes.

Stutz initially told attendees that “community choice schools” established under House Bill 562 will be required to teach IEFA.

“Community choice schools,” however, are exempt from Title 20, the constitutional statute that requires schools to participate in IEFA.

When asked to clarify his answer, Stutz pointed to Article X of the Montana Constitution, which states that Montana “recognizes the distinct and unique cultural heritage of the American Indians and is committed in its educational goals to the preservation of their cultural integrity.” He said that schools under House Bill 562 would still be required to teach IEFA under that broader constitutional guideline.

Legislators passed IEFA into law in 1999 to implement the statute in Article X and create requirements for the execution of the program.

“Even if it were unsaid in the legislation, it would still be part of the education program,” Stutz said, saying that IEFA is “addressed in a broader sense.”

Asked again to clarify whether or not “community choice schools” would be required to teach IEFA, Stutz ultimately said that the schools could choose to include education on Montana’s Indigenous communities.

“In general, besides the funding and besides the broader requirements, the specifics of the IEFA expectations and requirements could be included in the charter contract,” he said.

He added that schools could include more education on Montana’s tribes than normal public schools, which could help add flexibility in some tribal locations.

“There is that overall mandate and there’s that flexibility in the charter contracting provision,” Stutz said.

A district court judge recently denied an attempt by plaintiffs to block House Bill 562 — which is set to go into effect on July 1 — through a temporary restraining order. A hearing is set for July 17, where the court will rule on whether or not to temporarily enjoin the law, blocking it until the judicial system can iron out whether or not it’s constitutional.

The lawsuit can be read here.

OPI will host three more “Local Accountability” sessions this summer: obscenity, notification requirements and religious freedom on July 26; the Special Needs Equal Opportunity Act on Aug. 23; and parental rights on Sept. 20.