Bill for students with disabilities should be stopped as lawsuit unfolds, plaintiffs argue

Money for public schools could pay for private- or home-school students’ plane tickets to study Italian — or for their chicken coops or lessons in ice skating or rodeo roping, according to plaintiffs alleging a 2023 education bill approved by the Montana Legislature is unconstitutional.

This week, the Montana Quality Education Coalition and Disability Rights Montana asked a district court judge in Lewis and Clark County to grant a temporary injunction against House Bill 393.

Proposed to help students with disabilities, HB 393 would send money for public schools to “education savings accounts” to be used by the student’s parents or guardians for any expense they deem “educational” with approval by the superintendent of public instruction.

“Few meaningful strings are attached,” the plaintiffs said.

Plaintiffs, who sued Gov. Greg Gianforte and Superintendent of Public Instruction Elsie Arntzen, allege the voucher “scheme” is unconstitutional because it sends money away from public education at taxpayers’ expense and without public oversight.

The plaintiffs also argue it harms students with disabilities — “precisely who it purports to benefit” — in part because they must waive their rights to a free and appropriate public education. In HB 393, parents waive their and their child’s rights in the federal IDEA, the Individual with Disabilities Education Act, the plaintiffs said.

HB 393 was controversial; it passed with just a two-vote margin in 2023.

A brief filed Monday in support of temporarily stopping the bill from taking effect alleges HB 393 uses a public school funding formula “in three perilous ways” that, without court action, will cause irreparable harm to students, taxpayers and public education.

Legislative services estimated the bill could cost $140 million a year if all eligible students with disabilities participate in the voucher program. The plaintiffs note each student can take from $6,000 to $8,000 a year.

An expert report filed with the brief notes a child in Montana can receive the money by attending public school just a few days one year and then continue to get the money “every school year thereafter.”

The Montana Quality Education Coalition represents more than 100 school districts, six statewide public education advocacy organizations, and public school employees.

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 superintendent and governor, both Republicans, earlier said they support all children.  Arntzen said Montana parents know the needs of their students better than the government, and a spokesperson for Gov. Gianforte said he supports Montana’s children.

“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 earlier.

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Represented by Upper Seven Law, plaintiffs asked the judge this week to stop the law from taking effect or risk harm to education, including its funding.

The public school student funding formula is referred to as ANB, or “average number belonging.”

First, the contested law requires the superintendent to count each student in the program as participating in public school for ANB purposes, which “artificially increases” a district’s count and its entitlement to state money, said the court filing. But the setup “immediately transfers those funds out of the district to private hands.”

Second, it doesn’t allow for counting partial attendance, such as a homeschool student who takes a couple of hours of choir or soccer through public school. That means the school district is allocated the fractional amount of funding for the partial attendance, such as $1,561 for two hours, but it must pay up to $8,420 into a trust account for the student’s private education, the court filing said.

Third, it means possible increases to local property taxes to make up for the “outsized effect” on a school from a departing student, especially in rural districts that rely on economies of scale, plaintiffs said.

“A few students ‘out’ do not necessarily decrease the need for instructors and other staff,” said an expert report filed with the brief. “But as students access their ESAs (education savings accounts) and leave the school district, there will be fewer funds to employ the necessary staff.”

The expert report also said the law opens the door for unaccredited online and “substandard” “pop-up” schools — ones not subject to oversight — to proliferate in Montana, and it creates a friendly market for vendors selling “fad” or “unfounded pedagogies.”

The expert report was filed by Tammy Lacey, previous chairperson of the Montana Board of Public Education, former superintendent of Great Falls Public Schools, and 2017 Montana School Superintendent of the Year. Now retired, the report said Lacy is a mentor to educators in Montana and sits on the foundation board of the Montana School for the Deaf and the Blind.

The brief filed this week said a temporary injunction is warranted because the plaintiffs are likely to succeed on the merits since HB 393 “violates the Montana Constitution at least three times over.”

It unlawfully delegates spending authority to the superintendent of public instruction and gives the Office of Public Instruction “unfettered and unappropriated access to money that belongs in school districts’ general funds,” said the court filing.

It reduces public school funding, “offers no assurance that money will go to meeting the needs of students with disabilities,” and it doesn’t even mention a “quality” education protected in the state constitution, the brief said.

It also “usurps local school board of trustees’ control” because it requires them to “raise funds and make payments over which they can exercise no control,” said the court filing.