Montana students signing up for public charter schools

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Students already are signing up to attend Montana’s new public charter schools — the Board of Public Education approved a whopping 19 of them this year, and more are on the way.

Doug Reisig, with the Montana Quality Education Coalition, said more applications will be submitted this summer to the Montana Board of Public Education.

“It’s an exciting development for Montana education and for us to meet the needs of students in Montana,” Reisig said this week.

In Billings Public Schools, Superintendent Erwin Garcia said the largest district in the state is opening three new schools, and the new law that allowed them to be created ensures districts can be competitive and stay “at the edge of innovation.”

Just one of the schools has drawn 85 students so far.

“It opens a great deal of opportunities,” Garcia said of the charter school legislation. “Because of that, we as a district are exploring what could be the future when it comes to our elementary programs.”

The additional schools across the state are launching following the passage of House Bill 549 in the 2023 session. Reisig said they’re a significant addition for Montana — on top of just a couple of charter school offerings before the bill.

The rollout hit a speedbump this spring when the Montana Quality Education Coalition and Office of Public Instruction disagreed about the process for opening the schools, but last week, a judge sorted out the quarrel for the time being and advised the focus remain on school children.

“Above all, the students’ best interests should come first, which seems to have been forgotten by the parties as they slash their legislative interpretation sabers at one another,” wrote Lewis and Clark District Court Judge Michael McMahon in an order.

The Office of Public Instruction had argued that before it could open one of the newly approved public charter schools, it needed a parental petition and approvals from trustees, the county superintendent and county commissioners.

The judge disagreed, at least at this point. The order last week said both the Board of Public Education and the Office of Public Instruction have some oversight of new schools — the Board “establishes” and OPI “opens.”

Opening a school involves assigning it a code for budgeting and other purposes.

In the order, the judge temporarily barred OPI from requiring compliance with the parental petition, county superintendent approval, and county commission approval before it issues codes to the new schools. He said the window to meet those requirements for schools to open by July 1 didn’t allow much time “to cure errors.”

However, the judge said it accepts that OPI must be provided a headcount — ANB, in school speak, or average number belonging — for each school as a practical matter and “seemingly” as a matter of law as well.

The judge also put the order in the context of recent disapproval directed at the judicial branch by some lawmakers.

“Mindful of judicial activism criticism, this court must note that in this dispute, the new preliminary injunction standard quite literally requires this court to make the kinds of policy calls about the public interest which are generally the exclusive province of the legislature, and which courts avoid strenuously if not strictly required by law.

“Without ruling on the merits, and exclusively for the purposes of this preliminary injunction, the court concludes that it is in the public interest to require compliance with OPI’s school opening statutes except to the extent that they require a parental petition, county superintendent approval and county commission approval.

“OPI’s interpretation may entirely derail charter schools’ opening even if OPI is incorrect on the merits. Conversely, if the board’s interpretation is ultimately determined to be incorrect, OPI will still be provided the ANBs and OPI can still engage in its school opening process.

“It is in the public interest to favor an interpretation which does not have a chance of irrevocably derailing the opening of public charter schools over an interpretation which may unnecessarily prevent the opening of properly established public charter schools,” the judge wrote.

In a phone call this week, Reisig said the additional requirements OPI tried to mandate were never intended to be in the bill, and the schools always planned to provide ANB, as the judge directed.

“It’s a huge win,” he said of the order.

The Montana Quality Education Coalition describes itself as one of the largest education advocacy organizations in the state representing large and small districts and urban and rural ones.

Reisig also said the order means the law as adopted can become a reality: “These charter schools and the children that want to attend these charter schools will be able to attend them in the fall.”

In an email broadcast from OPI, Superintendent Elsie Arntzen also touted the order as a win given the judge agreed OPI “opens” schools. She said discussions about statutory requirements were for the legislature on another day.

Arntzen’s earlier decision to try to enforce requirements such as county commissioner approval drew legal opposition from the Board of Public Education in a letter making demands of OPI. (The board is not party to the lawsuit.)

Legislators on the interim budget committee on education also issued a rebuke of Arntzen that said many of her actions were causing confusion and impeding the laws they had passed, such as the one to make it easier to open charter schools.

In the news release, however, Arntzen stated her support for the new schools. Arntzen is also running for Congress in the Republican primary in Montana’s eastern district.

“I am encouraged that Public Charter Schools give parents a choice in the education of their children. During my years as state superintendent, my focus has been putting Montana students first,” Arntzen said in a statement.

In Billings, Garcia said the district is on the brink of opening three new schools.

One, a first for Montana, will allow students to graduate with their high school diploma and an associate degree on the same day, he said; 75 students have enrolled so far. He said the school is drawing smart students from many middle class families who might want to save on the cost of college.

Another focuses on career opportunities, and some 85 students are enrolled, he said. A third is a multilingual academy for English-language learners in the district; 40-50 are enrolled in the program that aims to provide linguistic support so students learning English don’t fall behind.

The district counts roughly 350 students who don’t speak English as their first language, some because the regional hospital draws medical professionals from Nigeria or the Philippines, Garcia said. Engineers come from Pakistan or India, for instance, because of the need in the U.S. workforce, he said, and some families come from Ukraine because Billings is a resettlement community.

Garcia said the legislation was a strategic and intelligent move that is giving the community options and ensuring the public school district stays marketable against private and parochial schools and can meet the needs of families in the future.

“We already have well-educated people who want to come to our community, and they’re looking for opportunities for their children,” Garcia said.

In the recent court order, the judge described the law, the Public Charter Schools Act, as a new act, and one “expressly passed as a dramatic departure from, and exception, to the previously existing Montana public education statutory scheme.”

The order said the Montana Quality Education Coalition is likely to succeed on the merits on its stance that the new schools don’t need a parental petition or approvals from the county superintendent or commissioners. But the case will play out, and Reisig said if the law contains ambiguities, the Montana Legislature can take them up in 2025 if it chooses.

“If there’s any discrepancies or ambiguities in the law, the legislature will convene again in January and … maybe take another stab at it,” Reisig said.

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