Lawsuit challenges education bill for students with disabilities as unconstitutional

A bill proposed to help children with disabilities actually represents a “staggering” loss of funding to public schools in the form of a “blank check,” would be a hit to rural districts, and unconstitutionally routes state money to private institutions “at the discretion of private individuals,” according to a lawsuit filed Tuesday.

The voucher program in House Bill 393 is also “antithetical to both quality and equality” in education, the plaintiffs said.

In the lawsuit, the Montana Quality Education Coalition, or MQEC, and Disability Rights Montana allege HB 393 is unconstitutional in four different ways, including by directing public money to “private actors” not under control of the state, and by directing cash payments to some students “to the direct disadvantage of others.”

“HB 393 is part and parcel of a recent national effort to privatize education with public funds that cannot be squared with the spirit and letter of the Montana Constitution,” said the lawsuit, filed by the Upper Seven Law firm.

“Indeed, the Montana legislature is obligated to ‘provide a basic system of free quality public elementary and secondary schools’ and to ‘fund and distribute in an equitable manner to the school districts the state’s share of the cost’ of those schools.”

The nonprofit MQEC is one of the largest education advocacy organizations in the state, representing more than 100 school districts, six educational organizations, and educators in urban and rural areas.

Disability Rights Montana is the federally mandated advocate protecting and advocating for the civil, legal, and human rights of people with disabilities across Montana.

The lawsuit said the bill will harm Disability Rights Montana by hurting the students it needs to protect: “Not only does it make serving students with disabilities who remain enrolled in public school more difficult, HB 393 does not ensure that students with disabilities who opt for an ESA (education savings account) and leave the public school system will receive a free and appropriate public education.”

House Bill 393 was controversial in the most recent legislative session.

Passed by a two-vote margin in 2023, the law allows parents with students who have special needs the ability to be reimbursed with taxpayer money for their child’s education in homeschool or private school or an online nonpublic school.

In a reimbursement program slated to open next school year, school districts take money from their general funds, largely property taxes, and put it into an education savings account with the Office of Public Instruction.

Parents can be reimbursed from the fund for expenses for their child, such as tutoring or test preparation — or they can let the money accumulate until it hits a maximum $125,888, adjusted for inflation, when the child hits 19, the lawsuit said, although families have access to the fund until the student is 24.

“Masquerading as aid to students with disabilities, HB 393 takes public money out of local school district accounts and hands it directly to private individuals with little to no oversight,” said Upper Seven

In the 2023 legislative session, opponents supporting the public education system threatened a court challenge if the bill was signed into law. One opponent, Tal Goldin, described HB393’s “education savings accounts” as a way of laundering public money.

“This bill does not help Montanans with disabilities,” said Goldin, director of Advocacy at and attorney for Disability Rights Montana, in a statement about the lawsuit. “Instead, it reduces public school resources while offering no assurance that students with disabilities who leave the public schools will receive appropriate educational services that meet their needs. It’s a lose-lose situation.”

The lawsuit, filed against the State of Montana and Republicans Gov. Greg Gianforte and Superintendent of Public Instruction Elsie Arntzen, notes the bill authorizes “any other educational expense approved by the superintendent,” or “standardless spending.”

It also represents as much as $140 million a year redirected from school districts to private individuals if all students who are eligible participate, the lawsuit said, pointing to the cost estimate filed with the bill.

“While HB 393 provides no assurance that students with disabilities will receive the services and education they need, it assuredly provides that public schools will have fewer resources to serve their students, with and without disabilities,” the lawsuit said.

That’s because the cost of public education remains the same — the power bill for a classroom wouldn’t change, for instance — so school districts have to make up the difference, the lawsuit said. In other words, the payouts “compromise the economies of scale” that allow schools to provide a quality education, the firm said.

“MQEC cares about quality public education — full stop,” said Doug Reisig, Montana Quality Education Coalition’s executive director, in a news release from Upper Seven. “Strong public schools foster strong communities. HB 393 is the Montana Legislature’s attempt to shirk its obligation to provide free quality public education to every child in Montana.”

In an email from her office, defendant Arntzen said she is a daughter of a special education teacher and has always supported children of all abilities.

“Local accountability starts with the family. Montana parents know the educational needs of their students better than the government,” said Arntzen, who termed out of the superintendent job but running for the Republican nomination for U.S. House in Montana’s eastern district.

The Governor’s Office said it also doesn’t generally comment on litigation but stressed Gianforte’s support for education. Gianforte is making a bid this year for a second term.

“The governor believes each child is unique and deserves access to the best education possible to meet his or her individual needs, especially for the more than 18,000 students in Montana who require specialized education services,” a spokesperson said.

HB 393 is one of several education bills that was controversial during the most recent legislative session. Another bill, HB 562, is under a temporary injunction after a separate lawsuit alleged it would unconstitutionally outsource public education and divert public school tax dollars to private schools.

Upper Seven is representing plaintiffs in that lawsuit as well. Tuesday, the firm’s executive director said HB 393 also runs contrary to Montana’s promises for students.

“Like our public lands, public schools are one of Montana’s most precious resources,” said Rylee Sommers-Flanagan, Upper Seven Law’s executive director and attorney for the plaintiffs. “The Montana Constitution guarantees a quality education for all students, regardless of background or circumstance. HB 393 hollows out this promise. The law cannot stand.”

Keila Szpaller is deputy editor of the Daily Montanan, a nonprofit newsroom. To read the article as originally published, click here.