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Plaintiffs ask court to find ‘community choice school’ act unenforceable, request summary judgment


Plaintiffs ask court to find ‘community choice school’ act unenforceable, request summary judgment

Feb 07, 2024 | 11:17 am ET
By Keila Szpaller
Plaintiffs ask court to find ‘community choice school’ act unenforceable, request summary judgment
Photo illustration by Getty Images.

In September, a district court judge partly stopped a “community choice school” act the legislature approved in 2023 because it is likely unconstitutional — and plaintiffs asked the court this week to find House Bill 562 is in fact unconstitutional and unenforceable in a request for summary judgment.

“If HB 562 is implemented, it will wreak havoc on our state’s public schools and rob Montana children of the educational opportunity we have promised them,” said plaintiff Jessica Felchle, a Billings public school teacher, in a statement.  “HB 562 would harm my students, and I can’t let that happen.”

The Lewis and Clark County District Court judge found HB 562 sets up a commission that likely interferes with the authority of the Board of Public Education to oversee schools, and that the schools the bill would set up have characteristics of private schools even though they’re described as public. For example, the judge said, teachers aren’t required to be certified, as they are under the Board of Public Education.

The request for summary judgement filed by Upper Seven Law said the bill “euphemistically describes its system of unregulated schools as ‘community choice schools.’ In fact, it creates an extra constitutional privatized school system that mimics the existing public school system’s structure, uses public dollars to subsidize unaccountable private education, and excludes community members from exerting any influence at the ballot box.”

The plaintiffs include the Montana Quality Education Coalition, the League of Women Voters, and eight teachers, parents, voters and taxpayers. In June 2023, they sued the state of Montana, Gov. Greg Gianforte, and Superintendent of Public Instruction Elsie Arntzen alleging the legislation was “outsourcing public education” and infringed on the constitution at least six different ways.

In arguing in favor of HB 562 during the 2023 legislative session, some parents said they needed greater control over their children’s education and more “choice” for students who didn’t succeed in a traditional classroom. The bill sponsor said the conservative Montana Family Foundation also backed HB 562.

In partially and temporarily blocking the act from taking effect, Judge Christopher Abbott found the educational setup is likely unconstitutional, but the judge also allowed a commission working on the schools to continue preliminary tasks, such as hiring staff and approving bylaws.

Montana already authorizes charter schools within the public school system, and a separate bill, House Bill 549, made it easier to start those schools under the authority of the Board of Public Education. Last month, the Board of Public Education unanimously approved 19 different charters proposed through their public school districts — after considering 26 proposals, many more than board members said they expected.

The request for summary judgment filed late Tuesday said the schools HB 562 allows aren’t accountable to the public or the constitution. It said the plaintiffs support both public education and voting rights, and HB 562 undercuts both.

The state has 21 days to respond to the request for summary judgment.


Upper Seven released the following statements about the filing for summary judgment:

“By privatizing public education in Montana, this bill would harm every single local public school. It hurts everyone: students, teachers, voters, and communities across the state.  We cannot and will not allow the legislature to pull taxpayer money from public school classrooms to fund an unconstitutional private school scheme.” Amanda Curtis, President of the Montana Federation of Public Employees.

“Public education is the foundation for success in Montana—it fuels our best and brightest and gives our children the opportunity to achieve the American dream. HB 562 would do away with basic state law requirements that set high expectations for teachers and keep students safe.  It violates the Montana Constitution and it must be struck down.”Rylee Sommers-Flanagan, executive director of Upper Seven Law and plaintiffs’ counsel.

HB 562 request for summary judgment