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Lawyer: ‘School choice commission’ can address legal concerns in bylaws


Lawyer: ‘School choice commission’ can address legal concerns in bylaws

Oct 02, 2023 | 8:15 pm ET
By Keila Szpaller
Lawyer: ‘School choice commission’ can address legal concerns in bylaws
Photo illustration by Getty Images.

Earlier this month, a district court judge temporarily stopped part of a “school choice” bill from taking effect, but a Montana Department of Justice lawyer said this week the order also identifies stumbling blocks that can be addressed.

The Community Choice School Commission met Monday for the first time to begin work on implementing new legislation that authorized the creation of charter schools separate from the public school system.

The judge halted much of the bill but said the commission could meet to do some work while the process plays out in court.

Montana already allows charter schools through the public school system, but many parents told legislators they wanted more control over their children’s education, and they pushed for House Bill 562, the “Community Choice Schools Act.”

The law landed in court, and Lewis and Clark District Court Judge Christopher Abbott found the powers of the commission overseeing those schools to likely be unconstitutional and granted a partial preliminary injunction.

However, the order also allowed the commission to get to work as long as it doesn’t authorize any schools. Monday, the commission met briefly for introductions, a review of Montana’s open meeting laws, adoption of bylaws, and review of the court case.

At the meeting, Department of Justice legal counsel Thane Johnson said the court order offered a roadmap of sorts to ironing out problems it found in the law.

“This is good legislation, and it can be fixed,” Johnson said.

Commission Chairperson Trish Schreiber cautioned members that Johnson and Alwyn Lansing of the Department of Justice were not representing the commission, and Johnson encouraged the commission to seek its own representation.

At the same time, Johnson said the judge spelled out concerns with the law in the order, and Johnson said the commission could address those concerns in its bylaws.

“Those things can be cured in the bylaw drafting,” he said.

A member of the commission wanted to know specifics, and Johnson said he didn’t want to elaborate and inadvertently “step over the line” given ongoing litigation.

But he pointed to the conclusion in the order.

The conclusion noted the court did not find “choice schools” themselves to be unconstitutional.

However, it did find that the plaintiffs were likely to show the state may not take away authority from the Board of Public Education or local school boards and give it to a separate board created by the legislature.

The court also said plaintiffs showed the Constitution likely requires elections for those “choice schools” to include all electors, not just “the narrow subset” of people connected to the new schools.

The commission adopted its bylaws but reserved the right to amend them in the future.

Johnson also said he could make a recommendation if the commission wanted to find its own lawyer. He said he believed an attorney would be willing to help at no cost.

“This is a big crossroads right now, and it’s exciting times,” he said.

The law and “school choice” are priorities for Republican Gov. Greg Gianforte’s administration.

The governor’s education policy advisor attended the meeting, and Lt. Gov. Kristen Juras walked the commission through open meeting requirements.

Commission members

  • Two members appointed by Gov. Greg Gianforte:
    • Trish Schreiber, Chairperson, Helmville
    • Cathy Kincheloe, Whitefish
  • One member appointed by the Superintendent of Public Instruction:
    • Jon Rutt, Laurel
  • One member appointed by the President of the Senate:
    • Dee Brown, Hungry Horse
  • One member appointed by the Speaker of the House:
    • Mark Hufstetler, Kalispell
  • One member appointed by the Minority Leader of the Senate:
    • Vacant
  • One member appointed by the Minority Leader of the House of Representatives:
    • Katy Wright, Helena

Source: Board of Public Education website