The Indian Education For All program on the Montana Office of Public Instruction website (Image OPI)
Montana tribes along with the American Civil Liberties Union of Montana and the Native American Rights Fund alleged in a lawsuit Thursday that state educational agencies have failed to meet constitutional and statutory requirements ensuring students in Montana’s K-12 public schools are properly taught about indigenous history and culture.
The tribes included in the class-action lawsuit include the Fort Belknap Indian Community, Confederated Salish and Kootenai Tribes of the Flathead Reservation, Northern Cheyenne Tribe, and Little Shell Tribe, as well as 18 individual plaintiffs, including public school students and parents.
The lawsuit claims that the Montana Office of Public Instruction and Superintendent Elsie Arntzen, along with the Montana Board of Public Education and Chairperson Darlene Schottle, have not upheld their duties to implement, monitor, and enforce provisions laid out in the Indian Education Clause of the state constitution and the Indian Education for All Act in state code.
“I feel the law intending Indian Education for All is meant to bring about the empathy, compassion, and sense of responsibility (particularly needing to come from White people) that I experienced organically from being more immersed in Indian culture as a child,” said Jessica Peterson, in a press release from the ACLU of Montana announcing the lawsuit. Peterson is the mother of a 2nd grader who attends Central Elementary in the Montessori program in Helena, Montana. “I don’t see this education happening in the Helena Public Schools. I think it’s a very invisible curriculum if it exists at all.”
MBPE Executive Director, McCall Flynn, said the agency has not yet been served with a lawsuit and would not comment on media reports of the allegations. A spokesperson for OPI said the agency does not comment on ongoing litigation.
After a 1996 legislative evaluation on how schools were complying with the IEC found that many schools “had no policy or information in their school curricula recognizing the cultural heritage of American Indians,” the IEFA was enacted in 1999 to serve as the “the missing link between the Indian Education Clause’s language and the actions needed to implement its promises,” according to the lawsuit. The IEFA mandated “every Montanan, whether Indian or non-Indian, be encouraged to learn about the distinct and unique heritage of American Indians in a culturally responsive manner.”
Following two lawsuits challenging public school funding of the IEFA, the state Supreme Court ruled the Legislature must appropriate funds annually to support the IEFA. However, despite that funding, the lawsuit says provisions in the IEC and IEFA “remain largely unmet in many Montana public schools.”
A 2015 independent review of the implementation of IEFA called it “toothless” and identified three main shortcomings of the program — insufficient standards, insufficient monitoring, and insufficient enforcement, according to the suit. The suit alleges state agencies have not remedied the failings outlined in the 2015 report.
While the agencies have released guides on how schools can implement the IEFA and IEC provisions, they have not provided minimum standards or outcomes that schools must meet to comply with the suit alleges. Additionally, the suit says the defendants have failed to develop a “mandatory, uniform, and transparent” reporting system to ensure schools are actually using the IEFA funds for IEFA purposes.
Instead of producing detailed reports on how IEFA funds are used, most schools only listed the amount of money they received without explaining how the money was spent, according to the suit. Beyond lack of explanation of how money is spent, the suit says some schools may not be using all the money allocated to them.
“As a result of these unreported IEFA expenditures, of the $6.7 million in statewide IEFA funding appropriated for Montana public school districts for the combined Fiscal Years 2019 and 2020, almost 50% (nearly $3.5 million) was unaccounted for,” the suit says.
And when the expenditures are accounted for, it is not always for appropriate uses, the suit says, pointing to Deer Creek Elementary School using IEFA funds to purchase the book “Squanto and the Miracle of Thanksgiving, which teaches the “actual hero of the Thanksgiving was neither white nor Indian, but God,” according to a description of the book on Amazon.
Schools are getting away with improperly spending the money, the suit alleges. The IEFA states, “[a] public school district that receives an Indian Education for All payment may not divert the funds to any purpose other than curriculum development, providing curriculum and materials to students, and providing training to teachers about the curriculum and materials.” The act further states, “public school district shall file an annual report with the Office of Public Instruction, in a form prescribed by the superintendent of public instruction, that specifies how the Indian Education for All funds were expended.”
Given those two clauses, the suit says, there is a “clear legislative intent that OPI must monitor through written reports the expenditure of IEFA funds to ensure that not one penny of those funds is spent for a non-IEFA purpose.”‘
The IEFA also requires schools to work with Montana tribes while providing instruction. But the plaintiffs say in the suit they have found no evidence that any Montana school has sought the help or input of tribes while putting together a curriculum.
The suit says schools can openly violate the provisions in the IEFA with no consequences and continue to receive IEFA funding.
“Defendants have undertaken no compliance, corrective, or enforcement actions against school districts or schools even when it is clear they are not in compliance with the Indian Education Provisions,” the suit says.
The plaintiffs are asking the court to rule the state has violated provisions in the IEC and IEFA and order them to establish adequate minimum standards to ensure compliance and work with tribes while implementing instruction.
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