Education Under a Microscope in Montana with Fight Over ‘Community Choice’ Schools

At the outset, Beau Wright seems an unlikely plaintiff in Felchle v. Montana, a lawsuit alleging that the state of Montana violated its constitution with the passage of its new charter school bill. 

“I am a believer in private schools, I am a believer in charter schools in some cases," says Wright, a public school teacher whose two children attend public school in Kalispell, a city of 25,000 on the edge of Glacier National Park. Wright attended private school in northern Virginia before moving to Montana to teach. 

He’s a supporter of educational choice and says he understands why parents might seek out alternatives to traditional public schools. Nevertheless, in May he joined nine other plaintiffs to oppose Montana’s latest school choice legislation that he says is “not good for the state [and] not good for education.”

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HB 562, signed by Governor Greg Gianforte in May 2023, is the latest attempt by school choice activists to transform the state’s educational offerings. The new bill is different from previous charter school proposals the state has considered.

Under the law, parents unhappy with their public schools will be empowered to propose new “Community Choice” schools. These schools will be exempt from statewide curriculum and safety requirements and will not be required to hire certified teachers. A partisan board appointed by the state will be in charge of setting the rules new schools must follow. 

These measures aren’t unique among public charter schools, but they stand out for their sheer strength. It is unusual, for example, that the Board of Public Education has not been granted any authority to authorize or oversee these new schools. 

Supporters say these measures ensure Community Choice schools will have the flexibility necessary to tailor their curriculum to the needs of their students. Heather Irving is a strong supporter of the bill and one of the nearly 8,000 Montanans who have chosen home-schooling over traditional public schools. Her son attended public school for only a year. She says that the teacher at her son’s school didn’t take the time to get to know him and he quickly became disengaged in class. She’s hopeful that the flexibility offered by Community Choice schools will prompt more one-on-one instructions, enabling students like her son to get the help they need in core subjects. 

 However, critics, including education advocates across the political spectrum, warn that these schools could prove profoundly damaging for Montanan students.

“The schools that are allowed under that bill don’t have any requirement to meet the safety standards of Montana’s public schools. The section of the code that says Montana schools have to have … fire exits, no asbestos, that’s all in Title 20,” explains Amanda Curtis, president of the Montana Federation of Public Employees, which represents public school teachers in the state and opposes the bill.

Title 20 of Montana Code Annotated governs education in the state and covers everything from school holidays to the procedures schools must follow in the event of a natural disaster. Community Choice schools are exempt from Title 20, a move that critics say will threaten the safety of students who attend them. 

According to the bill's critics, it's not just charter school students at risk. HB 562 could also cost students staying in traditional public school. That’s because in Montana, schools get most of their funding from per-pupil entitlements, meaning it follows a student from school to school. 

“If students are going to a Community Choice school, that can really impact our rural schools that are already struggling to stay open,” explains Jenny Murnane Butcher, deputy director of Montanans Organized For Education. Public schools here are already facing massive budget shortfalls and teacher shortages. Montana's Office of Public Instruction estimates that around 80% of Montana’s public schools are facing critical quality educator shortages. Bucher says even limited cuts could make it difficult for districts to hire qualified teachers or finance extracurriculars. 

Observers have also raised concerns about the rules governing board elections for these schools. Under the new law, only school employees and parents whose children attend the school are eligible to vote in elections for the school’s governing board. Plaintiffs in Felchle v. Montana believe this arrangement violates Montana’s constitution because it excludes residents whose children do not attend the school from having any say over how schools in their community are run. 

In September 2023, Judge Christopher Abbott issued a preliminary injunction against the bill. The injunction allows the commission responsible for these schools to meet, but bars them from approving applications for Community Choice schools while the case is pending. 

Still, school choice activists aren’t backing down without a fight. Lawsuits are common in the wake of charter school legislation, says Trish Schreiber, who helped write HB 562 and now serves as the commission’s chair. She’s confident that Montana’s bills will survive its legal woes. For now, the commission continues to meet and has begun to create guidelines for interested applicants. 

Schreiber beams with pride as she reflects on the gains school choice supporters in the state have made. In 2017, when she moved to Montana, the state’s only school choice policy was a tax credit scholarship program reaching less than 1% of students. Under this policy, Montanans received a tax credit for donating to organizations that provide scholarships to private schools– a more complicated version of a school voucher. 

In the last five legislative sessions, charter school bills failed to clear the Senate. Teacher and administrator groups have repeatedly opposed school choice bills, citing concerns about schools' funding and oversight. In 2011, a tuition tax credit bill failed to clear the House in part because lawmakers were unwilling to defy K-12 interest groups. 

“The K-12 public school system is the equivalent of the military-industrial complex,” then Republican-state Sen. Dave Lewis, a veteran lawmaker and former state budget director, told the Bozeman Daily Chronicle.  Lewis, who represented the state’s 42nd District, including Helena, did not seek re-election in 2014.

Post-pandemic, the education landscape in Montana has changed. The 2023 session saw lawmakers consider the most education bills in one session since 1973, the year Montana’s constitution came into effect. In addition to HB 562, lawmakers approved legislation to increase technical education and create education savings accounts for qualified students with disabilities. These accounts, nicknamed ESAS, give families access to their portion of per-pupil funding to spend on tutoring, private schools, and other educational expenses.

In a move that has signaled the increasing importance of education issues to legislators, the state legislature also approved a second, narrower, charter school bill, HB 549. Charter schools under this bill fall under the authority of the Board Of Public Education and are required to adhere to the same health and safety regulations as traditional public schools.

Montana is far from the only state to have seen an uptick in education legislation following the COVID-19 pandemic. In 2023 alone, 10 states adopted legislation aimed at establishing or expanding school choice. Many of these bills have faced criticism similar to the opposition to the Community Choice bill in Montana. Opponents worry about their drain on state budgets and accountability to taxpayers.

Advocates of school choice have long claimed that school choice programs need more leeway to be able to provide innovative alternatives for children who aren’t being served by traditional public schools. 

Post-pandemic, that argument has resonated with more and more families, according to Jon Valant, director of the Brown Center on Education Policy in Washington, D.C. He says that the shift to online learning in spring 2020 generated interest in non-traditional learning models as parents soured on Zoom instruction.

Parents here worry that Montana’s traditional public schools aren’t doing enough to educate their children in basic subjects like reading and math. Since the pandemic, reading and math scores have declined across the country, and Montana is no exception. In the 2022-23 school year, the Office of Public Instruction estimated that fewer than 40 percent of students in the third- through eighth grade were proficient in math.

Still, Valant stresses that school choice policies haven’t been embraced by everyone.

“[Legislation] has been very heavily concentrated in conservative states,” he says. Of the 10 states to expand school choice programs in 2023, all were Republican-controlled. 

Nationwide, Republicans have sought to energize their base by railing against critical race theory, LGBTQ rights in schools, and other cultural controversies. These attacks have driven a deep wedge between public schools and conservative parents. In 2023, 61% of Republicans reported feeling like public schools were having a negative effect on “the way things are going in the country.”

When it comes to Montana, educators and policymakers report that this polarizing national rhetoric has led parents to distrust their public schools, driving enthusiasm for alternatives like Community Choice schools.

In interviews and public testimony, school choice activists have accused Montana’s teachers and administrators of indoctrinating students with liberal ideas. 

“Teacher unions, Common Core, and the agenda to indoctrinate young people has negatively changed the background of public education,” Cindy Bumgarner, a former public school teacher and strong charter school supporter, testified to the Senate Education Committee in April 2023. 

Advocates of HB 562 echo these concerns in legislative hearings, characterizing Montana’s existing public schools as “race-based,” “union-controlled,” and “inferior” to private options. 

Public school supporters say they sympathize with parents like Heather Irving, who see charter schools as a lifeline for their children struggling in traditional public school. Montana parents are “speaking from a place of real frustration and real experience,” says Rylee Sommers-Flanagan, the lead attorney in Felchle v. Montana. But, she says, regulations are there for a reason: to protect students. 

Instead of trying to reinvent public education, public school supporters say parents unhappy with their local schools should fight to improve existing educational options. “There are just so many things that we could be doing to strengthen and support our traditional public schools that we are not doing,” laments Murnane Butcher, from Montanans Organized for Education.

She says that allocating more funding for teacher salaries—Montana currently ranks 51st in the nation for starting teaching salaries—and investing professional development opportunities for educators are just some of the steps that the legislature could take to strengthen education in the state. 

Another option is to expand school offerings using HB 549, the second charter school bill. While these public charters still pose a threat to funding for traditional public schools, they eliminate many of the accountability and safety concerns raised by opponents of Community Choice schools and have the backing of the Montana School Boards Association and the School Administrators of Montana. So far, however, school choice advocates have derided this compromise, calling HB 549 a “distinction without a difference.” 

Even so, education policy makers remain hopeful that the process established by this second bill will gain traction, allowing districts to provide innovative opportunities for students while protecting their safety and well-being. Already, the Board of Public Education has approved 19 applications for charter schools under this bill, including a proposal for a multilingual school in Billings and a school dedicated to career-based education in Hamilton. 

In the meantime, public school supporters are preparing for their day in court and prepping for the 2025 legislative session, where they expect to see the debate over education savings accounts hit its stride. Felchle v. Montana is still pending, but the preliminary injunction is a sign that Judge Abbott might be receptive to the plaintiffs' arguments. If that’s the case, advocates are optimistic that the polarizing education debates that have gripped that state post-COVID will quickly be a thing of the past.

 “Every poll that has ever been done on parents in their local schools show that parents really do trust their local school and their local teacher. There’s not a thread to pull on there,” says Curtis.