Legal questions raised about Montana's conflicting charter school bills

Gov. Greg Gianforte recently signed two bills into law that each set up their own particular charter school systems in the state, actively making Montana the 46th state in the country to implement the independent, public schools.

“Each child is unique and deserves access to the best education possible to meet his or her individual needs,” the governor said in a press release after signing the bills in late May.

The passage of the bills, and questions about whether the two systems will conflict or if they are constitutional, has become a source of contention and prompt legal challenges. Both laws are slated to go into effect July 1, yet lawsuits have already been filed against one of the bills.

Charter schools are tuition free schools that are publicly funded but independently operated. In exchange for exemptions from many state laws and regulations that public schools abide by, charter schools are bound to the terms of a contract that lays out the school’s mission. On the other side of the charter is the authorizer, such as a state agency, university or school district, that has the power to shut the charter down if it doesn’t meet the terms of its contracts.

Charter schools are often created for specialized purposes through specific electives offered and curriculum taught. For example, a charter school that focuses on health education or a pre-medicine track would provide school work and opportunity in that field alongside the regular curriculum. Charters can also benefit students who do not excel in a traditional classroom setting.

House Bill 549, sponsored by Rep. Fred Anderson, R-Great Falls, creates a charter system that is subject to existing public school regulations and is overseen by a locally elected public school board and the Board of Public Education. The legislation was supported by many Montana public education organizations as well as a bipartisan coalition of legislators.

Meanwhile, House Bill 562, sponsored by Rep. Sue Vinton, R-Billings, proposes a different charter system. It allows for the establishment of “community choice schools,” as the bill language states, which would be governed by a new, state-appointed commission and overseen by a local board elected by staff and parents of the school. These schools, contrary to Anderson’s system, are exempt from many of the regulatory requirements the state currently uses in public schools.

A major qualm between educators and education organizations alike is the debate on the constitutionality of Vinton’s bill.

Anderson’s legislation, HB 549, requires charter schools to comply with Title 20 of the Montana Constitution, which provides regulations that public schools must follow, including teacher certification and curriculum requirements. The state Constitution also states that public schools must be overseen by an elected school board, chosen by voters in the district. HB 549 coincides with this, according to supporters.

House Bill 562, in contrast, does not require a district-wide elected board. Rather, only parents and teachers associated with the charter school would be allowed to elect an oversight board, despite the fact that the school would be funded through taxpayer dollars. Further, schools under 562 would be exempt from many of the regulations in Title 20.

“At the end of the day, we’re all looking to accomplish the same thing: we want to provide a quality education for our students,” said Sue Corrigan, a member of the Kalispell Public Schools Board of Trustees and the vice president of the state School Board Association. “We just differ on the method of going about that.”

According to Corrigan, she refers to HB 562 as the private charter system and HB 549 as a public option, although both systems use taxpayer funding.

There are differences between the bills, according to Corrigan, in the realms of accountability and representation. However, regardless of the differences, Corrigon looks forward to the creation of a system that works for Montana.

“We’re definitely going to have to deal with charter schools in Montana,” she said. “It just depends on which [system].”

THE MONTANA Quality Education Coalition, the largest education advocacy organization in the state, recently announced their commitment to challenge HB 562 in court.

The coalition, in a press release, said that if the legislation is implemented, communities across Montana would see public resources and funding diverted from local public schools to unaccountable charter schools which could hire unlicensed teachers and would be exempt from health and safety laws.

“There are some constitutional challenges that make implementing the bill virtually impossible,” said Doug Reisig, executive director at Montana Quality Education Coalition.

According to Reisig, those challenges include the governing board, exemptions from most of Title 20 regulations and the lack of accreditation in staff.

When a child leaves a school, the state funding for that child follows them. Reisig argues that any child from across the state could attend a community choice charter school, yet the local school board will not be able to offset those costs in the community to keep taxes down.

“Do we have issues to work through in the public school setting? Absolutely,” he said. “But we have always been willing to address them. [Under 562], who knows what could be created. Virtually anything could be created.”

Reisig further contends that a lack of oversight and the transfer of funding could disproportionately affect minority populations, children with disabilities, and could be devastating to rural communities.

Rep. Anderson, the sponsor of HB 549, claims that 549 better protects smaller communities than its counterpart. Under 549, only Class 1 and Class 2 districts are allowed to have charters. By focusing the effort on bigger districts, the effects of transferring students won’t be as drastic, he said. Under 562, any district, regardless of size, could privately create a charter school.

“If you are going to put another school in a small community that is funded by the taxpayers, it will bankrupt the community,” Anderson said.

That concern is widespread. Lance Isaak, a member of the Kalispell Public Schools Board of Trustees, said he, too, is concerned about diverting funds from an “already underfunded public education” system, leading to a less diverse learning environment for students.

DESPITE THE upcoming litigation, there is some strong support for the possible implementation of HB 562. Rep. Braxton Mitchell, R-Columbia Falls, was a member of the House Education Committee during the 2023 session, which first heard both bills in February.

“There’s a lot of folks in the Flathead who want school choice … parents want their kids to go to school to get an education, not to be indoctrinated with ideals that weren’t taught five or 10 years ago,” Mitchell told the Inter Lake, referencing critical race theory and representation of LGBTQ+ communities in schools.

He voted against HB 549, but supported HB 562.

In terms of the school choice movement, HB 562 is a loose system that grants parents the freedom to decide what their children’s education looks like, according to Rep. Dave Fern, D-Whitefish.

In the past, private schools — not funded by public tax dollars — were embodiments of this. Fern said the argument against HB 562, however, is that it would grant some private independence to publicly funded schools.

“They're looking for more flexibility and less regulations in a school setting,” Fern said. “549 is not doing that. It's looking to conform to the existing regulations by allowing existing public schools to have charters too.”

Regardless, the bill maintains its supporters.

In the initial hearing on Feb. 20, many proponents and opponents spoke about both bills. Megan Upton, a resident and mother in Flathead County, testified that HB 562 grants educational freedom while HB 549 does not.

“I oppose HB 549 because it isn't an education freedom bill … this bill works against our families,” she said during the hearing.

Others argued that HB 549 creates a system that looks too similar to public schools.

However, Rep. Anderson said there are multiple differences between a comprehensive public high school and a charter school, specifically in the specialization of what they teach.

“The intent of the bill is certainly not to beat up on a school system or destroy it; the intent of the bill is to provide the educational opportunities guaranteed in our constitution to every child,” Anderson said.

Rep. Courtenay Sprunger, R-Kalispell, was one of few Republicans to vote against HB 562 and support HB 549. Sprunger, the child of a public school teacher, who passed funding this session to go toward career and technical education focused opportunities for students, said that HB 549 had structure and embodied the constitutional standards the state holds educators to.

“What we ultimately need to be doing, regardless of perspective, is ensuring our children are getting the best education possible and allowing parents to make the decisions that are best for their children,” Sprunger said.

Reporter Kate Heston can be reached at kheston@dailyinterlake.com or 758-4459.