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By Alan Gottlieb
Montanans proudly describe themselves as an independent bunch, marching to their own beat and placing the highest value on individual freedom.
It seems incongruous, then, that the geographically massive, sparsely populated state is one of only five in the nation without public charter schools, the leading vehicle in most states for parental choice in education.
That could be about to change, if a new law creating “Community Choice Schools” survives a state court challenge. The state legislature passed a bill earlier this year, signed by Governor Greg Gianforte, establishing the choice schools, identical in every respect save the name with charter schools in other states.
But the new law was immediately challenged in state court by a consortium of traditional education groups.
District Judge Chris Abbott of Helena in September placed a limited preliminary injunction on portions of the law, putting at least a temporary stop to any choice school approvals.
At the same time, however, Abbott allowed a Community Choice School Commission to form and begin planning implementation of the new law, even as its future remains very much in doubt because of what critics call overly broad and vague language in the state constitution.
Two constitutional barriers cloud the law’s future. The first is language that gives the Montana Board of Public Education (BPE) “general supervision over the public school system and such other public educational institutions as may be assigned by law.” Plaintiffs argue that because House Bill 562 allows the new commission to authorize charter schools, that the law usurps the authority vested in the BPE by the state constitution.
The second potential barrier is constitutional language that vests control of district schools in locally elected school boards. In the view of the law’s opponents, allowing an independent board to offer a public, choice school inside school district boundaries would undermine local boards.
Trish Schreiber, a special education expert and school choice advocate who helped drive passage of the new law, was named the commission’s chair by Gianforte. She said she remains hopeful the law can take effect. But she acknowledged the litigation could continue for well over a year, delaying the birth of true charters in Montana.
That’s a pity she said, because Montanans want and desperately need schools run outside the state’s entrenched education establishment. She said she saw this first-hand when she started coaching public school teachers and saw how poorly many school districts, especially in rural areas that comprise much of the state, serve those students due to insufficient access to special education evaluations and services.
“I was just appalled,” she said. It brought home to her the need for schools that operate non-traditional programs for students with a variety of needs that district schools can’t meet.
Regardless of how current litigation resolves, advocates express confidence that it is only a matter of time before the state has a choice school sector.
“Our voters are telling us we want school choice. We want to be involved in our kids’ education,” said State Rep. Sue Vinton, a Billings Republican and the House Majority Leader who sponsored and championed House Bill 562. “They are saying ‘we want to have choices in the type of education our children receive.”
Complicating matters further, a second charter school bill, House Bill 549, also became law during the last legislative session. It is, by all accounts, a weak law that gives the schools that might be created under it few of the freedoms charter schools in other states enjoy.
It allows districts to create their own charter schools, which must, by and large, abide by state regulations and collective bargaining agreements. True charter laws provide exemptions from those strictures.
Dale Schowengerdt, a Helena-based lawyer fighting the lawsuit against HB 562, said House Bill 549 does little more than provide “an additional funding stream” for traditional public schools.
“It’s almost comical,” he said. Still, should the more robust law pass court muster, the two bills could exist side-by-side. “I don’t see them as necessarily opposed to each other.”
Why has Montana resisted charters?
Viewed from a superficial level, Montana would seem like fertile ground for charter schools. After all, next-door neighbor Idaho is extremely charter-friendly, and Montana’s libertarian streak should provide a welcoming environment.
But it’s not that simple for a variety of reasons. As charter school advocates tell it, several factors have kept charters from gaining a foothold until now.
First, though Montana now has a Republican governor and Republican supermajorities in both houses of the state legislature, Gianforte took office just two years ago. Before him, Democrats held the governor’s seat for 15 years.
Second, those governors had close ties to the state’s education establishment, consisting of the School Administrators of Montana, the Montana School Boards Association, and the Montana Federation of Public Employees. These organizations have opposed the formation of choice schools and make up a portion of the plaintiffs in the lawsuit under the 501c4 Montana Quality Educator Coalition (MQEC).
Third, the Montana Federation of Public Employees is a powerhouse, representing not just teachers but all other public employee groups in the state. Related to the union’s political power is the fact that Montana has a strong history of organized labor, dating back to the days of the copper barons. Their rapaciousness gave rise to a powerful labor movement in the state, vestiges of which remain today.
Finally, Montana’s rural nature has created a loyalty to its many tiny school districts. “In these rural areas, oftentimes the public schools are the biggest employer in the community,” said Kendall Cotton, president and CEO of the Frontier Institute, a free-market advocacy organization he founded in 2020. “That’s a big influence on a local legislator when they’re making decisions on issues like school choice.”
Concerted pressure combined with the fact that Montana’s state government is now Republican-dominated helped turn the tide in 2023.
Prospects for agreement across the union-charter divide
Katy Wright is a teacher, a “strong, proud union member,” and a supporter of bringing choice schools to Montana. She is a member of the new choice school commission and believes she can help convince her fellow union-members that choice schools will be beneficial to students and teachers alike.
What brought her to this conclusion, which cuts against the grain of teachers union positions across the country? It’s simple, she said: First, her own experience as a public-school Montessori teacher opened her eyes to the value of educational options. And second, she read the research demonstrating the efficacy of charter schools.
Wright teaches in a multigrade Montessori classroom — grades 1-3. The multigrade approach, she said, tracks well with stages of child development. “That catapulted me into advocacy work to try to get more public access to the Montessori methodology because it works so well,” she said.
Much of her advocacy has focused on “trying to reform public education within the existing district landscape.”
She helped talk the Montana union into supporting licensure equivalency for Montessori-trained teachers, something unions have opposed in other states. Ironically, she said, one effective argument was that if the public system didn’t get onboard with opening Montessori schools, it would open the door to charters in Montana.
“It just took some education to get their support,” she said.
Wright said she is optimistic the same strategy can turn the union around on choice schools as well. “Because Montana never does anything the usual way, because Montana is always an outlier, I’m really hopeful that there can be a union partnership in this choice school environment, because it’s law now.”
She said reading a 2023 research study from Stanford’s Center for Research on Educational Outcomes (CREDO) convinced her that choice schools would be beneficial to Montana.
“The evidence is there that choice schools, charters, can benefit students and benefit teachers,” she said. “It’s just connecting people with accurate information, which is what we did with the Montessori issue.”
Wright, as a member of the Community Choice Schools Commission, will play an important role trying to bridge what in most places has been an intractable divide. “I have a history of working with my union to move us forward in different ways than people expected,” Wright said. “I don’t know what that’s going to look like in this case. I’m working both sides of the fence here.”
Will HB 562 remain law?
How Judge Abbott ultimately rules on the lawsuit against HB 562 is anybody’s guess. But Schowengerdt, Schreiber and others said that the recent inclusion in the case of three intervenors for the defendants strengthens their case significantly.
Two of the intervenors are members of Montana tribes (one is also a state representative) who want to establish dual-language immersion schools on their reservations. The third is a nationally-recognized special education teacher and school administrator who wants to start a school focusing on special needs students.
“It gives some of those concrete facts for why the Community Choice School Act is important in the first place, and the purpose it serves,” Schowengerdt said. “The law is designed for people just like my intervenors. They’re people who have tried to work through the traditional public school model and have been rebuffed time and again.”
Still, the law’s supporters fret that the judge can make an argument, if he so chooses, that it violates the constitution. While “general supervision” over public schools is a vague term that the constitution doesn’t define, Schreiber worries that it gives the judge room to uphold the lawsuit.
“It’s possible we’re going to lose this, but we had to take it to this level. We just had to,” she said. Some legislators even counseled against pushing the bill, fearing it would die in the courts, she said.
“What kind of attitude is that? That’s not how this is done. We need to call the opponents’ bluff of a lawsuit by offering a bill that explicitly adheres to the constitution, unlike previous versions of the bill,” she said.
Other school choice developments
While choice schools remain hung up in litigation, two other school choice developments have progressed in Montana. During the 2023 session, the legislature approved Education Savings Accounts for special education students.
The new law provides families of students with special needs who meet the federal definition of a “child with disabilities” an account with a maximum annual allocation up to $8,000. The money can be used for flexible educational and therapeutic uses, including private school tuition. The accounts may also be used for education-related transportation.
The state also expanded its tax credit scholarship program, launched in 2015, from $2 million per year to $5 million. It allows individuals and corporations to claim a 100 percent tax credit for contributions to approved student scholarship organizations — nonprofits that provide scholarships for private school and tutoring. No individual can claim more than a $200,000 tax credit.
Whatever the ultimate fate of the choice school law in Montana, it heralds the dawn of a new age in the state, said State Senator Ken Bogner, a Miles City Republican who carried the choice schools bill on the Senate floor.
“It’s a really exciting time for Montana,” Bogner said. “There are 45 other states that have passed this, so for Montana to finally get there is very gratifying,” he said.
Alan Gottlieb is a Colorado-based writer, editor, journalist, communications consultant, and nonprofit entrepreneur who owns Write.Edit.Think, LLC. He founded EdNews Colorado, which later merged with Gotham Schools to form Chalkbeat. He does consulting work for Bluum, an Idaho-based non-profit education group.
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