Judge blocks portion of law allowing charter schools in Montana

Alex Sakariassen

Montana Free Press

A state judge in Helena Wednesday blocked portions of a law passed by the 2023 Legislature to create a system of charter schools — or what supporters call “community choice schools” — in Montana.

In his decision, Lewis and Clark County District Court Judge Chris Abbott barred state officials, including Superintendent Elsie Arntzen, from enforcing a large chunk of House Bill 562, which lawmakers approved on largely party lines this spring. However, Abbott declined to block a part of the bill establishing an autonomous state commission to oversee the new choice school system. All seven members of that commission have been appointed and will be allowed to meet, hire staff and adopt bylaws, although Abbott did prohibit them from considering applications for school charters or for local entities seeking authority to approve charters themselves while the case continues.

Administrative Rules of Montana allowed charter schools to be created before two bills were passed in the last session, and one, Bozeman’s Bridger Charter Academy, has been in operation for several years.

The plaintiffs seeking the injunction on the new law, which include the Montana Quality Education Coalition, the League of Women Voters of Montana and several individual parents and educators, challenged that HB 562 violates the Montana Constitution on a number of grounds, among them the diversion of state funds to schools they maintain are not public.

“Diverting public funds to schools with no accountability will fundamentally change the nature of public education in Montana and we cannot stand for it,” Jessica Felchle, a Billings-area parent and public school teacher and plaintiff in the case, said in a statement Wednesday. “For both my own children and the children I teach, I am incredibly relieved.”

A spokesman for Gov. Greg Gianforte — who, along with Arntzen, is a defendant in the lawsuit — offered the following statement: “The governor remains committed to empowering Montana parents to choose the education that best meets the individual needs of their child, including the option of public charter schools.”

The discussion fueling Abbott’s decision played out during a hearing last month in Helena, where a mix of HB 562’s most ardent fans and critics squeezed together along a pair of courtroom benches. Rylee Sommers-Flanagan of Upper Seven Law presented the plaintiffs’ case for the injunction. Alwyn Lansing from the Montana Department of Justice followed with the state’s rebuttal. But in both circumstances, Abbott interjected with one question after another, ferreting out details and posing hypothetical scenarios in what resembled more of a legal tete-a-tete than a straightforward argument.

One issue that piqued Abbott’s curiosity was the question of electoral accountability within the new choice school system. Under HB 562, sponsored by Rep. Sue Vinton, R-Billings, existing public school boards can apply to become authorizing agents for charter applications in their districts. Once a charter is approved — either by a local board or by the state commission — the new school is directed to establish a board of its own within three years, one elected by staff and parents at that school.

Sommers-Flanagan argued, on behalf of the plaintiffs, that the final step in that process denies other residents in a charter school district their constitutional right to participate in local elections.

Lansing countered that voters already have a say in electing trustees to the public school boards that HB 562 envisions as the first tier of authorizers of new choice schools.

In issuing the partial injunction Wednesday, Abbott wrote that the competition for enrollment and state funding generated by choice schools gives “every qualified elector in the district” an interest in the outcome of those choice school board elections. There is “no compelling interest in excluding electors merely because they are not employed or enrolled in the school,” Abbott continued, adding that the plaintiffs are “likely to succeed” in their claims challenging the constitutionality of that electoral model.

As for the seven-member state commission, composed of appointees by the governor, state superintendent and legislative leadership, Abbott repeatedly asked both attorneys during the hearing whether the commission’s role infringes on the constitutional authority of the Board of Public Education. HB 562 declares that the commission is “autonomous,” but also places general supervision of the commission in the hands of the BPE. In his ruling Wednesday, Abbott characterized the board’s supervisory powers as nominal and opined that “the Legislature appears to have placed the commission under the general supervision of the board in name only.”

Abbott at several points last month asked whether the Legislature’s simultaneous passage of House Bill 549, which establishes a system of public charter schools governed by existing public school boards, had any bearing on the court’s consideration of HB 562. Both attorneys noted that HB 549, sponsored by Rep. Fred Anderson, R-Great Falls, is not challenged in this or any other current litigation. In his order Wednesday, Abbott acknowledged that the latter remains in effect, writing that the “probable constitutional defects” identified by the plaintiffs in HB 562 don’t apply to HB 549.

Some characterized HB 549 as essentially codifying in law the procedures already in place in Administrative Rules of Montana.

“Regardless of HB 562’s fate,” Abbott wrote, “HB 549 will allow school boards and the Board of Public Education to establish charter schools that can innovate in many of the ways identified by the state.”

In his conclusion, Abbott noted that while the plaintiffs had provided a compelling argument for blocking portions of HB 562, they have not shown that “charter schools or choice schools are themselves likely to be per se unconstitutional.”

And despite the injunction, supporters of the law appeared optimistic Wednesday that the state would ultimately win out.

The Helena-based Frontier Institute issued a statement calling Abbott’s ruling a “temporary setback,” and expressing “relief” that the judge allowed the commission to proceed with “laying the groundwork for choice schools.”

As of last week, state elected officials had appointed all seven members of that commission. Trish Schreiber, a senior education fellow at the Frontier Institute and one of the architects of HB 562, was named commission chair last month by Gianforte. Schreiber did not immediately respond to a request for comment on Abbott’s decision Wednesday. On Aug. 31, Arntzen named Gary Carlson as the commission’s final addition.

With the partial injunction now in place, more filings are likely to follow, after which the case may proceed to trial.

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https://montanafreepress.org/2023/09/06/judge-blocks-portion-of-law-allowing-charter-schools-in-montana

Havre Daily News staff contributed to this report.