Judge finds ‘school choice’ act likely unconstitutional, grants partial preliminary injunction

Order: ‘School choice commission’ may continue its work, but not approve schools while case is pending

By: - September 6, 2023 4:53 pm

Illustration by Getty Images.

A Lewis and Clark District Court judge partially granted Wednesday a request to stop a “school choice” act that authorized the creation of charter schools separate from the existing public school system until a final decision on the merits.

However, Judge Christopher Abbott also said a “school choice commission” that’s working on those charter schools may still hire staff and approve by-laws before the court’s decision, as long as it doesn’t authorize any schools while the preliminary injunction is in effect.

In the order, the judge said the plaintiffs have demonstrated the commission’s powers are likely unconstitutional and “invade” the authority of the Board of Public Education. He also gave a nod to the attention legislators paid to the topic this year.

“The 2023 legislative session was a busy one regarding the subject of charter schools,” the order said. “After several procedural ups and downs, two bills survived that paved the way for expanded charter schools in Montana … This lawsuit is a challenge to only one of these bills, (House Bill) 562.”

Both of the surviving bills were controversial. In the last couple of legislative sessions, and with support from Republican Gov. Greg Gianforte, lawmakers have taken up legislation designed to make it easier to operate schools outside the authority of the Montana Board of Public Education, in some cases with public money.

Montana currently allows charter schools within the public school system, but some parents argued they wanted more control over their children’s education, and HB 562 would open that door for them. In his order, the judge discussed HB 562 and, as a point of contrast, also House Bill 549, which also offers more flexibility for charter schools, but within the current public school system.

In the order partially granting the preliminary injunction, the judge said the commission is “paradoxically described as both ‘autonomous’ and ‘under the general supervision of the Board of Public Education,’” but he raised questions about how that supervision would work.

“The Commission must report annually to the Board, but the statute is silent on how — if at all — the Board may supervise, review or direct the commission in these duties,” the order said.

The order also said the statute defines “choice schools” as public, but their actual structure “has characteristics of both private and public bodies.” For example, teachers in a “choice school” aren’t required to be certified, as they are in a public school under the authority of the Board of Public Education, the order said.

In his rationale, the judge found the legislature may add to the scope of the Board of Public Education’s responsibilities, but it may not take away from them: “Indeed, the legislature can no more transfer the Board’s constitutionally sanctioned executive powers to another body than it could transfer the duties and powers of the Governor or the Attorney General to a new office of the legislature’s creation.

“House Bill 562 takes some of this authority away from the Board of Public Education. It creates the School Choice Commission and gives it authority to supervise part of the public school system.”

A group of plaintiffs that included the Montana Quality Education Coalition, the League of Women Voters of Montana, and eight Montana teachers, parents, voters and taxpayers brought the lawsuit against the state, Gov. Gianforte, and Superintendent of Public Schools Elsie Artnzen.

They alleged the bill would create “a separate and unequal system of state-subsidized private schools” that conflicts with the Montana Constitution’s guarantee of an equal, free and quality public education.

Nonprofit law firm Upper Seven Law represents the plaintiffs, and in a statement from the firm, Montana Federation of Public Employees President Amanda Curtis said the decision comes as no surprise.

“Access to high quality, free, and equal public education in Montana is a fundamental right under our state constitution,” said Curtis, also a member of the education coalition. “This case is about our children and about the future of our state. We cannot build privatized schools that defund public schools and provide quality education at the same time.”

A teacher and parent expressed relief at the order and confidence the Montana Constitution would continue to protect education for her children and those she teaches.

“Diverting public funds to schools with no accountability will fundamentally change the nature of public education in Montana and we cannot stand for it,” said Jessica Felchle, a Billings public school teacher with children who attend Laurel Public Schools.

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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.