State Superintendent Elsie Arntzen hosted a virtual forum Wednesday evening for Montanans curious to hear her agency’s take on the key distinctions between two separate charter school bills passed by the 2023 Legislature.
The discussion, led by Office of Public Instruction Chief Legal Counsel Rob Stutz, covered a range of topics over the course of an hour, including teacher licensing requirements, elections for governing bodies, and compliance with the Montana Constitution’s Indian Education for All mandate. Noting that his comments were strictly informational and “not a substitute for legal advice,” Stutz frequently relied on screen-sharing to highlight portions of bill language and text from preexisting state law. He also informed viewers early on that one of the laws — House Bill 562 — is the subject of an ongoing legal challenge filed last week in Lewis and Clark County District Court.
He stated that although a temporary restraining order was rejected in the district court, there will be a hearing on July 17 to determine if a preliminary injunction should be granted for House Bill 562. This injunction, if approved, would prevent Montana from enforcing the law until the legal dispute is settled.
Stutz proceeded to offer an overview of how each bill operates, starting with House Bill 549. The law allows for the creation of charter schools under the oversight of Montana’s Board of Public Education and the governance of local school boards. Those boards, Stutz said, could be separate from existing public school boards, provided a separate charter school district is established. Under HB 562, he added, there’d be no formation of a distinct charter school district, and approval of charter applications would fall to a new state commission appointed by the governor and various other elected officials.
Stutz was about to proceed with his comparison, but before he could, a viewer interrupted with a query regarding the prevention of sex offenders working in charter schools under HB 562. Arntzen promptly interrupted Stutz’s presentation, proposing to initiate the discussion and inviting questions related to charter school authorization. The question concerning sex offender employment was reiterated. Stutz immediately responded by showcasing the text of HB 562 on screen for viewers to visualize and proceeded to conduct a search for the term “fingerprints” to locate the relevant section.
Stutz explained that the provision mandates criminal history record checks and fingerprinting for teachers, school staff, and governing board members. This requirement aligns with the existing licensing standards of the Board of Public Education, which also includes similar checks for teachers.
From there, questions continued from the roughly three dozen participants, the bulk of them focused on HB 562. One asked whether that law required charter school teachers to meet state licensing requirements. Stutz replied that the question was “beyond the scope of the legislation” in light of other legislation to increase licensing flexibilities, but he added that charters under HB 562 are allowed to contract educational services from “outside entities.”
Stutz explained that the contracted services might not necessarily involve teachers licensed by OPI.
Stutz failed to mention a specific line in HB 562 which clearly states that charter school teachers are exempt from the state’s existing teacher certification requirements.
There were also questions from viewers regarding the election of charter school boards in both laws. One viewer specifically asked if the process described in HB 562 goes against the Montana Constitution. In HB 549, all voters in a charter district are allowed to participate in these elections, while HB 562 restricts them to parents and employees at the school. Stutz chose not to provide a legal opinion on the constitutionality of the latter, which was raised as a concern by the plaintiffs in the recent litigation. However, Stutz did mention that legislation is assumed to be constitutional until proven otherwise.
A string of other questions focused on charter school compliance with Indian Education for All and with federal special education laws. With regard to the former, Stutz pointed to a line in HB 562 committing to “preservation of American Indian cultural identity” and to financial support for Indian education included in existing state per-pupil funding formulas. The same is true for HB 549, he added. As for special education, Stutz said both bills contain language making charter schools “responsible” for meeting federal requirements for students with special needs.
Several state education associations that support HB 549 have criticized HB 562 for its provision that exempts “community choice” schools from following Title 20, a set of existing education laws. During a discussion on Wednesday, one participant brought up this concern again, specifically regarding Indian education requirements. Stutz acknowledged the exemption but proposed that charter schools could choose to include these requirements in their charter contracts, which define their educational objectives and missions.
Stutz expressed his concern about sounding repetitive, but he emphasized that, apart from the funding and broader requirement, it would be beneficial to include the specific expectations of the Indian Education for All program in the charter contract. He further suggested that these expectations could be made more detailed and tailored to the resources accessible within the local community.
The discussion on the broad Title 20 exemption in HB 562 resurfaced once again before Arntzen concluded the meeting. One participant expressed concern about the law’s lack of reference to compliance with the Montana Constitution, stating that he finds this omission to be “problematic.”
Stutz responded, acknowledging the concerns raised. He noted that the mention of Title 20 indeed conveys its intended message. However, it fails to state that it is exempt from the constitution. In an unusual instance of providing a legal opinion in this conversation, I would assert that if a statute explicitly declares itself not bound by the constitution, I would opine that such a statute violates the constitution.
Wednesday’s event was the first of four “parental updates” Arntzen is hosting this summer on recent changes to state education law enacted by the Legislature. The next is scheduled for July 26, at 7 p.m., and will feature a discussion on Montana’s obscenity law, House Bill 234, as well as a pair of laws governing religious conversations, practices and materials in public schools.
