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.
“A temporary restraining order was denied here in district court, but there’s going to be a hearing on July 17 about whether a preliminary injunction should be issued regarding House Bill 562,” he said. The injunction he referenced would block Montana from implementing the law until the litigation is resolved.
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.
Before Stutz could continue with his comparison, a viewer interjected with a question about how HB 562 would “prevent sex offenders” from working in charter schools. Arntzen then halted Stutz’s presentation, suggesting they “begin the discussion” and soliciting questions related to charter school authorization. The question about sex offender employment was repeated. Stutz dove in, displaying the text of HB 562 for viewers to see and conducting a search for the word “fingerprints” to bring up the applicable section.
“It provides that teachers and other school personnel, as well as governing board members, are subject to criminal history record checks and fingerprinting requirements,” Stutz said. “That’s the same type of check that’s done for teachers when they are licensed under the Board of Public Education’s current licensing standards.”
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.”
“Those contracted services wouldn’t necessarily include teachers licensed by OPI,” Stutz said.
Stutz did not reference a line in HB 562 that explicitly states charter school teachers are “exempt from state teacher certification requirements” outlined in existing law.
Viewers also inquired about the election of charter school boards in both laws, with one asking specifically whether the process outlined in HB 562 violates the Montana Constitution. HB 549 allows for all voters in a charter district to participate in those elections; HB 562 confines those elections to parents and employees at the school. Stutz declined to offer a legal opinion on the constitutionality of the latter — a question raised by plaintiffs in the recent litigation — but did comment that legislation is “presumed to be constitutional until it’s demonstrated that it’s not.”
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.
Critics of HB 562, including several state education associations supportive of HB 549, have repeatedly voiced concerns about language exempting what HB 562 refers to as “community choice” schools from compliance with a large block of existing education laws known collectively as Title 20. One participant in Wednesday’s discussion raised that issue when reiterating earlier queries about Indian education requirements. Stutz acknowledged the exemption but suggested charter schools could opt to include such requirements in the charter contracts that outline their missions and educational goals.
“I don’t want to sound like too much of a broken record here, but, in general, besides the funding and besides the broader requirement, the specifics of the [Indian Education for All] expectations could be included in the charter contract, and frankly, they could be more specific,” Stutz said. “They could be more targeted at the resources available in the local community.”
Before Arntzen called the meeting to a close, the broad Title 20 exemption in HB 562 came up one more time, with a participant commenting that he finds the law’s omission of Title 20 requirements, or any reference to compliance with the Montana Constitution, “problematic.”
“I understand the concerns,” Stutz replied. “The specific reference to Title 20 certainly says whatever it is that it says. But what it doesn’t say is that it’s exempt from the constitution. And in a rare case of me offering a legal opinion in this chat, I would say that if a statute says explicitly that it is not subject to the constitution, I would opine that that statute is unconstitutional.”
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.
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