Schools leader wants rule for opting out of school policies

MISSOULA — Montana's elected education leader has said she is crafting a rule that would give parents the ability to opt out of some local school board policies, including mask requirements, after a temporary rule adopted by the health department at the beginning of the school year had little effect.

Superintendent of Public Instruction Elsie Arntzen spoke about her proposal on Monday evening with about 75 people gathered in Missoula for a discussion of parental rights at Crosspoint Community Church, a Southern Baptist Church. The Western Liberty Coalition conservative group that promotes constitutional rights in Montana sponsored the gathering.

The Department of Public Health and Human Services rule, issued on Aug. 31, said schools should consider parental concerns when adopting mask mandates to prevent the spread of the coronavirus and should provide parents the ability to opt out of health-related mandates for several reasons, including physical and mental health and developmental needs.

School leaders across the state said they had taken parental concerns into account and continued with their mask mandates while offering remote learning for students who did not want to wear masks.

Arntzen said her office wants to make a rule with more force than the health department's rule which said schools "should" consider parental concerns — not that they "must" consider them.

It's unclear whether Arntzen has the authority to create such as rule.

Any rule put in place by a state schools superintendent that undermines the authority of the state's locally elected school boards "would likely be void on its face," said Lance Melton, the executive director of the Montana School Boards Association.

School boards have constitutional authority to supervise and control each school district, Melton said, adding that the "the state superintendent has no constitutional authority" over the districts.

Arntzen said she was working with the state attorney general's office on the proposal, which she said could take effect in April, the Missoulian reported.

"This is a governmental action and it will have the force of law until it has a court action or else we can get it put into any framework with the Legislature," meets in 2023, she said.

Under the proposal, parents would have the option to opt out of school board policies, such as those that address health issues, such as masks or vaccines, Arntzen said. Montana's Legislature passed a law that prevents discrimination based on vaccine status, she noted. The law is being challenged in court.

Arntzen said she asked her staff in early October to determine possibilities for an agency rule change "so parents have an opportunity for their voices to be heard through exemptions of school board policies. That process, which is a thorough and deliberate one, is continuing at the OPI," she said in a statement Tuesday.

At the state Department of Justice, "attorneys have been providing legal counsel to the Office of Public Instruction about the scope of the superintendent's rulemaking authority regarding parental rights," Emilee Cantrell, spokesperson for Attorney General Austin Knudsen, said Tuesday.

Melton argued the rule is not needed.

"Community elected school boards already have this issue well in hand, having offered opportunities for reasonable accommodations of disabilities and exceptions based on sincerely held religious beliefs and alternatives for accessing curriculum through distance learning since the beginning of the pandemic," Melton said in an email to The Associated Press on Tuesday.

Local school boards are trying to ensure student and staff safety using various federally recommended precautions including social distancing, frequent hand washing, cleaning and disinfecting and, in some cases, masks, Melton said.

Arntzen, a Republican, has also spoken against school mask requirements at rallies in Billings and Helena.

Quentin Rhoades, an attorney for parent groups who have filed lawsuits to challenge school mask mandates in Missoula and Gallatin counties, told the gathering at the Missoula church that he plans to appeal rulings that denied requests for preliminary injunctions and allowed schools in those counties to continue their mask requirements.

Missoula school board trustee Mike Gehl asked Rhoades to recall a conversation they had at a similar meeting at the same church in late August.

"What is it you said about what to do with these two superintendents?" Gehl asked Rhoades. He did not specify which two superintendents he was speaking about.

"Shoot 'em?" Rhoades replied, prompting laughter from the audience.

"You said, 'fire 'em,'" Gehl corrected.

After the meeting, Rhoades said he was joking when he made the comment and that the audience took it that way.

"The entire audience seemed to accept and appreciate the light-hearted intent of the exchange," Rhoades said in an email to the Missoulian. "Of course, it was not intended to offend anyone, and, moreover, it clearly did not."

Missoula County Public Schools Superintendent Rob Watson, in a social media post on Wednesday, said he wanted to know if Arntzen had laughed.

Arntzen issued a statement Wednesday afternoon saying she had been unaware of any comments made after she spoke on Monday because she had gone out into a hallway to talk individually with people. She learned about Rhoades' comments in a newspaper story, she said.

"These types of comments serve no purpose in championing parent voice in our public education arena," she said, adding that she condemns statements or actions of violence, regardless of the context, and said she had spoken with superintendents in Missoula to express her disdain for the comments.