Controversial education bill advances, but two charter bills fail on second reading

Opponent says HB 393 launders public money

By: - April 26, 2023 3:47 pm

Controversial education legislation advances in the Senate. (Photo illustration by Getty Images).

Two charter school bills failed on the Senate floor Wednesday on second reading, but separate legislation a lawyer said has the potential to cost local school districts and the state $151 million a year advanced 26-24.

All three bills had raised constitutional concerns with legislative legal staff.

Two were seen as competing proposals to allow Montana to open more charter schools.

The Senate didn’t pass either House Bill 562, sponsored by Rep. Sue Vinton, R-Billings, or House Bill 549, sponsored by Rep. Fred Anderson, R-Great Falls.

HB 562, which failed 23-27, would operate more outside the current system to open “community choice schools.” House Bill 549, which failed 8-42, would more widely open the ability for public charter schools in the current structure.

However, the Senate passed House Bill 393, called the “Students with Special Needs Equal Opportunity Ac.” It’s similar to a school vouchers bill that failed last session, and it has strong support from the Governor’s Office.

It passed 26-24 on second reading and will need to pass third reading as well.

“I believe this bill can be effectively implemented to provide special needs students with an education that meets their individual needs,” said Dylan Klapmeier, education policy advisor to Republican Gov. Greg Gianforte, in an earlier hearing.

Klapmeier also earlier thanked Vinton for refining the bill since last session.

However, the Montana Federation of Public Employees has criticized both HB393 and HB 562. MFPE President Amanda Curtis said together, they would create a troubling outcome.

“HB 562 and HB 393 will lead Montana to an outcome we’ve resisted since statehood — the privatization of our public schools,” Curtis said in a statement earlier this week. “In the next few days, legislators will determine whether to protect Montana kids’ constitutional right to a free, quality public education or sell it off to the highest bidder.”

HB393 would allow parents with students who have special needs the ability to be reimbursed with taxpayer money for their child’s private education.

An estimated 21,000 students would qualify, according to the fiscal note and testimony.

According to the bill, school districts would transfer roughly $7,000, made up of local property taxes and state funding, per eligible, participating student to OPI. OPI would put the money in an “education savings account.”

Then, parents could use it for a variety of expenses, which the bill identifies as including tuition, tutoring, software, distance learning, therapies including speech and language, or “any other educational expense approved by the superintendent of public instruction.”

The bill says parents who use the money sign a contract to “release the resident school district from all obligations to educate the qualified student.”

Students wouldn’t have to be enrolled in a private or nonpublic school full time to qualify, according to the proposal. The bill says OPI will require quarterly reports, but it may not regulate the program beyond what’s reasonable to administer the accounts.

In an earlier Senate Education and Cultural Resources Committee hearing, Jeff Laszloffy, with the Montana Family Foundation, praised HB393 and told legislators arguments about constitutionality were unfounded.

Laszloffy said other states have similar funds, and Montana is late to the game for such proposals, although he said that’s not all bad because the state has had the ability to learn from other models.

He urged passage of the bill and pointed to a court opinion that he believes demonstrates support for the way the legislation would direct tax money.

“This judge, who happens to be a former legislator as well, is suggesting that indirect payment programs like the one proposed in this bill are entirely constitutional,” Laszloffy said.

But Tal Goldin, with Disability Rights Montana, described HB 393 as a way to launder the public’s money and siphon it to private school — at the expense of all other students.

Goldin put the potential cost at $151 million for one year, as did a fiscal note for the 2027 fiscal year, if all eligible students participate. He said savings accounts for people with disabilities already exist under state law — and at a lower administrative cost.

The only new thing the bill does, he said, is filter the money.

“It’s a clever way to extract federal, state, and most importantly, local control dollars, send them through the laundry at OPI, and clean them of any legal obligations under both federal and state law,” Goldin said of HB 393. “When it comes out of the laundry, it goes to pay for private school.”

Also against the bill, Debra Silk, with the Montana School Boards Association, said students who fall under the Individuals with Disabilities Education Act are protected under state and federal law.

Schools develop educational plans to teach children, and if a child isn’t getting appropriate services, parents have due process rights. But under this bill, Silk said students don’t have due process protections.

“I think it’s bad public policy for this state,” said Silk, also representing the Coalition of Advocates for Montana Public Schools. “It’s bad for our public schools, and it’s bad for our most vulnerable population of students.”

If parents change their mind and wants to re-enroll a child in public school, the school district doesn’t get the money back, Silk said. The bill said the program account doesn’t close until a student’s 24th birthday.

Silk said the fiscal note estimates 100 students out of 21,000 might take advantage of the program, but she believes 10% might be more realistic, which she said would be a significant fiscal impact on local districts.

For example, if one in 10 participate, that’d redirect roughly $14.7 million from local school districts and state coffers to the savings accounts.

In presenting the bill, however, Vinton said the appropriation for the act is minimal, just $75,000 in administrative costs in fiscal year 2024 and $30,000 in fiscal year 2025.

“Families need flexibility in assessing the best and most appropriate educational setting for their child,” Vinton said.

She read from the bill directly, which says the constitution, “gives authority to the legislature to provide for educational programs and institutions in addition to a basic system of public schools that will fulfill the goal of the people to have an overall system of education that offers equal opportunity for all to reach their full educational potential.”

As of Wednesday morning, 31 people had submitted comments in favor of HB393, and 410 had submitted comments against it, according to the Montana Legislature tracking site.

On the charter school bills, the tracking site noted 1,879 comments against HB562 and 430 in favor. It counted 311 in favor of HB549 and 174 against it.

Montana Constitution Article X

Section 1. Educational goals and duties. (1) It is the goal of the people to establish a system of education which will develop the full educational potential of each person. Equality of educational opportunity is guaranteed to each person of the state.
(2) The state 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.
(3) The legislature shall provide a basic system of free quality public elementary and secondary schools. The legislature may provide such other educational institutions, public libraries, and educational programs as it deems desirable. It shall fund and distribute in an equitable manner to the school districts the state’s share of the cost of the basic elementary and secondary school system.

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana.