While litigation continues, the Montana Office of Public Instruction can continue administering a new education savings account program for students with special needs. A state judge in Helena on Wednesday denied a request to block the new law that authorizes the program.
That request was presented earlier this year by the Montana Quality Education Coalition and Disability Rights Montana as part of a lawsuit challenging House Bill 393, which established the savings accounts and was passed by Republican lawmakers in 2023. The two organizations argued that the new law violates the Montana Constitution by redirecting state funding from public school districts into accounts used to reimburse parents for non-public-school expenses. The plaintiffs also claimed that the savings account program threatens them with imminent irreparable harm in their respective roles supporting students with special needs, necessitating a freeze on HB 393 until the lawsuit is resolved.
In denying that request this week, Lewis and Clark County District Court Judge Mike Menahan disagreed about the immediacy of the alleged harm. He noted that while a fiscal note prepared for HB 393 sheds light on the potential impacts if all eligible students statewide enrolled in the program, evidence presented by OPI and other defendants indicates that participation in the first year is currently “very low.”
“While the Court acknowledges the seriousness of the potential harms plaintiffs identify, they are not the type of imminent harm a preliminary injunction seeks to prevent,” Menahan wrote. “Although HB 393 will have an impact on school budgets, the nature of that impact is too speculative to support an irreparable harm finding at this stage.”
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New special education accounts draw legal challenge
Disability Rights Montana and the Montana Quality Education Coalition have filed a lawsuit challenging the constitutionality of House Bill 393, a new education savings account law they claim directs public school funds into private hands.
HB 393 became a flashpoint during the 2023 Legislature’s broader debate over school choice policy. Supporters including the parental rights group Moms for Liberty argued that the measure would help parents access and pay for the educational services that best fit their children’s needs, even if those services are found outside of their public school. The Montana Quality Education Coalition, which represents five statewide education organizations and more than 100 Montana school districts, joined other public education advocates in countering that the bill would divert funding from schools to private entities and reduce critical resources for students with special needs within the public school system.
The lawsuit challenging HB 393 also lists state Superintendent Elsie Arntzen and Gov. Greg Gianforte as defendants. Republican state Rep. Sue Vinton of Billings, who carried HB 393 last year, successfully petitioned the court this spring to join the case as a defendant as well. Shortly after the injunction was denied Wednesday, Arntzen issued a press release from OPI characterizing Menahan’s decision as a “win” for Montana students and families.
“The education savings account offers parents the freedom to choose the best education for their children,” Arntzen wrote in a statement accompanying the release. “Unaccountable bureaucratic associations do not represent the will of Montanans.”
Asked Thursday for a response on behalf of the plaintiffs, Upper Seven Law executive director and attorney Rylee Sommers-Flanagan told Montana Free Press via text that Menahan’s denial was based on the program’s relatively low current participation rate.
“Plaintiffs respect the court’s decision and look forward to proving the very real constitutional harm caused by the voucher program,” said Sommers-Flanagan, whose Helena-based nonprofit law firm is representing the Montana Quality Education Coalition.
Along with school vouchers and tax credits for private school scholarships, education savings accounts, also known as ESAs, have become an increasingly popular policy tool among school choice advocates nationwide. According to the National Conference of State Legislatures, at least 36 states considered ESA legislation last year, and with the passage of HB 393, Montana became one of 13 states that now offer some sort of ESA program. While Montana’s law limits those accounts strictly to approved uses for students with special needs, other states have applied their policies to a wider array of students and services.
OPI had already taken steps to implement Montana’s education savings accounts prior to the lawsuit’s filing in January. The agency convened a 15-member steering committee last year to provide input from parents, lawmakers and educators, and opened the first application window for families in May. OPI spokesperson Brian O’Leary told Montana Free Press Thursday that the agency received 45 applications and determined that 23 students in 18 school districts were eligible for the program.
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