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Lawsuit filed challenging constitutionality of Montana charter school bill

Posted at 12:06 PM, Jun 15, 2023
and last updated 2023-06-15 20:18:32-04

A coalition of teachers, parents and statewide advocacy organizations filed a lawsuit Wednesday challenging one of two recently passed charter school laws as a violation of the Montana Constitution’s guarantee of educational equality for all students.

The complaint was filed by the nonprofit Upper Seven Law on behalf of 10 plaintiffs, including the Montana Quality Education Coalition and League of Women Voters of Montana. The lawsuit maintains that House Bill 562, sponsored by Rep. Sue Vinton, R-Billings, violates the U.S. and state constitutions “at least six times over.” HB 562 is slated to go into effect July 1, but the plaintiffs are also seeking an injunction from the Lewis and Clark County District Court to block the law while the litigation proceeds, reports the Montana Free Press.

When implemented, HB 562 would allow parents and organizations to seek state approval for what it calls a “community choice” school in their communities — schools that, like other charter-style entities, must adhere to a contract outlining their “powers, responsibilities and performance expectations.” Approval would come from an autonomous seven-member commission appointed by the governor, state superintendent and legislative leadership from both parties. Applicants would then become the governing body of that school, to be replaced later by a board elected by school employees and parents.

HB 562 requires that a charter school be open to “any student residing in the state,” but does allow schools to organize around “a special emphasis, theme or concept” and to restrict admission based on age, grade level or capacity. Such schools would receive per-pupil state funding through the Office of Public Instruction similar to existing public schools. They also would be exempt from a range of state laws that regulate teacher licensing, school accreditation, out-of-district attendance and other aspects of the public education system.

Vinton and other proponents of the new law argued that HB 562 was necessary to give parents, teachers and students more choice in K-12 education. In signing HB 562 and a separate charter school law, House Bill 549, Gov. Greg Gianforte said the state was “empowering Montana parents to choose what’s best for their family and their kids.” Adryann Baldwin, a homeschool parent and school choice advocate in Belgrade, told Montana Free Press this spring that publicly funded charter schools would hit “the sweet spot” for parents of an affordable, customizable education for their children.

Opponents countered that HB 562 threatens to divert critical taxpayer dollars away from public schools — part of what the Montana Quality Education Coalition and other state associations characterized as a broader agenda to privatize education spearheaded by out-of-state interests. Wednesday’s lawsuit echoed those concerns with attorneys arguing that HB 562 would establish a “competing system of individual educational nonprofits made public only by their unchecked receipt of public funds.”

“The Legislature cannot funnel public money to private institutions,” MQEC Executive Director Doug Reisig said in a statement accompanying the lawsuit’s announcement. “The health of our society depends on a free, high quality public education system. We vow to stand against school privatization activists’ incursions into Montana.”

The list of alleged violations in the complaint is extensive, including claims that HB 562 usurps the constitutional authority of existing local school boards and the Board of Public Education and that it fails to properly hold charter schools accountable to the state constitution’s Indian Education For All provision. Plaintiffs also argue the law “narrowly restricts” who can participate in elections for a charter school’s governing board and who can run in those elections, allegedly violating state and federal voting rights.

Reached shortly after the lawsuit’s announcement Wednesday, Vinton said she was still reading through and digesting the plaintiffs’ claims. However, she argued that lawmakers addressed the constitutional concerns around HB 562 “during the multiple hearings we had on this bill in particular” and that “we’ll go forward and see what the court has to say about it.”

“It wasn’t a surprise,” Vinton said of the filing. “It’s unfortunate for sure. It seems that going to the courts has become the purview of the people who oppose school choice and other freedom bills. They can’t win in public opinion or at the Legislature, so they go to the courts.”

Gov. Greg Gianforte and Superintendent of Public Instruction Elsie Arntzen are the two defendants named in the lawsuit. Gianforte’s office did not immediately respond to a request for comment. A spokesperson for OPI confirmed that Arntzen’s agency received a copy of the complaint late Wednesday afternoon but could not comment on the merit of the case “until the allegations are reviewed.”

For plaintiff Jessica Felchle, a Billings teacher, the concerns that drove her to join the legal challenge against HB 562 were manifold — the law’s use of public tax dollars, the limits on who has a say in charter school leadership, the potential for those schools to draw students away from small rural public schools through virtual class offerings. She told MTFP this week that her motivation stemmed from her roles as a Laurel property owner, as a mother, and especially as a longtime educator licensed to teach in Montana schools. Felchle’s career has taken her from a second grade classroom on the Crow Indian Reservation in Pryor to eighth grade science classes in the Billings Public Schools.

Felchle said she sees her teacher certification from the state — and that of her husband, also a public school teacher — as a vital accountability measure in public education.

“I have to not only learn the content, I learn the framework, I learn educational psychology, I have the opportunity to practice my skills before I’m in the classroom teaching,” Felchle said. “These parents can trust that I have background knowledge and that I have experience and that I have the ability then to provide a quality education for their students.”

Exempting charter schools under HB 562 from those and other state regulations “feels illegal and unconstitutional,” Felchle added.

Supporters and critics alike anticipated that HB 562’s passage would be met with a legal challenge, as lawmakers in the Senate held a lengthy debate about the bill’s constitutionality prior to its passage. Wednesday’s complaint is the first development in that court battle. The other charter school bill passed by the 2021 Legislature, HB 549, sponsored by Rep. Fred Anderson, R-Great Falls, places oversight of charter schools in the hands of existing public school boards, OPI and the Board of Public Education. Those schools would also be regulated the same as public schools.

HB 549 also produced a legal note citing potential constitutional questions, but so far no lawsuits challenging its legality have been filed.