A district court judge ruled on the lawsuit regarding public charter schools last week, and both parties have claimed victory.

Judge Michael McMahon, a Lewis and Clark County district court judge, issued his order in the case April 17, granting a preliminary injunction in part and denying in part.

McMahon’s order preliminarily prohibits the Montana Office of Public Instruction from “requiring compliance with
the parental petition, county superintendent approval and county commission approval provisions of [Montana law] as a condition to issuing schools codes and other support provided by OPI to charter schools. Such provisions directly interfere with the Legislature’s directive under the act to the board relative to public charter schools.”

Lawsuit filed against Arntzen, OPI over public charter school opening

The lawsuit was filed against OPI and Superintendent Elsie Arntzen asking a judge to determine that the process for opening new public charter schools falls under the Montana Board of Education and not OPI.

The Montana Quality Education Coalition filed the suit March 28 in district court in Helena on behalf of several education groups, including the Montana School Board Association, the Montana Federation of Public Employees, the School Administrators of Montana, the Association of School Business Officials, the Montana Rural Education Association and more than 100 school districts statewide.

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The lawsuit comes after Arntzen and OPI published guidance for opening public charters in February that differs from the process MBE has used and has stated is what was specifically prescribed by a bill enacted by the 2023 Legislature.

Recently, OPI’s Arntzen said that school districts would have to follow a separate and different process in state law to open a public school that requires review and approval by the county superintendent of schools and county commission.

Given the different processes interpreted by both parties, and the lateness of the dispute in those processes, McMahon wrote in his order that “the irreparable harm to those students counting on starting their public charter school education in 2024 should be undisputed by the parties. 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.”

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In an email to members, Doug Reisig, MQEC director, said “this is a good day for Montana K-12 public schools.”

In an April 18 statement, Arntzen said, “unaccountable associations and woke organizations will continue to attack me for being a conservative and putting students, parents and families first. The district court’s recent order clarifies that I am following the laws of our great state and not ignoring my constitutional duty to our students and schools. I have been a champion of school choice for children and parents during my time in office. I look forward to continuing to work with our school districts to open the public charter schools in accordance with the law and the court’s order.”

Legislators met in March to discuss the process and said that Arntzen and OPI were creating an unnecessary roadblock for those charter schools that MBE approved in January.

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On March 25, the MBE held a special meeting to approve a letter to Arntzen, directing her to recognize their authority and the process detailed in the new law and take specific steps to help the 19 approved public charter schools open.

In their suit, the education groups as the court to declare the MBE’s authority to approve and open public charter schools is valid and to direct Arntzen to comply with the board’s March 25 directive to her.

McMahon wrote that in their arguments, OPI was concerned with the average number belonging or ANB, which is the estimated or actual number of students, for each school.

In the suit, MQEC argues that the MBE has exclusive authority over the formation of public charter schools, while OPI argues that it retains the ultimate authority on whether a charter school may open, McMahon wrote.

All public schools in Montana are issued a code by OPI for budgeting and other administrative matters. Funding is distributed to schools with codes using a formula that includes ANB.

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The Legislature’s new law, passed in 2023, was to provide “other public educational opportunities for all students,” McMahon wrote, and “the statutory scheme places the board in general supervision over all public charter schools.”

He wrote that the court found no mention of OPI or the state superintendent in the new law or the statutes into which it was codified, so “public charter schools are manifestly under the general supervision of the board” but that Title 20, which involves OPI in the opening of new schools, is generally applicable to public charter schools and that nothing in the new law “expressly removed the superintendent’s seemingly concurrent” general supervision.

In his order, McMahon wrote that at this point, the court accepted that OPI needs the ANB to legally issue school codes.

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The new law could have given MBE exclusive supervision over public charter schools, but it didn’t, McMahon wrote.

It would also did not exempt public charter schools from other provisions of Title 20 or authorize the MBE to open public charter schools.

The law used “distinct terms, implying nonexclusive concurrent jurisdiction: OPI is charged with opening, the board with preopening; the board establishes schools, OPI opens them. ‘Where the Legislature used different language in the same connection in related statutes, it is presumed it intended a different meaning and effect,'” McMahon wrote. “It is presumed that the Legislature is acquainted with the law; that it has knowledge of the state of it upon the subjects on which it legislates; that it is informed of previous legislation and the construction it has received. Until the Legislature clarifies the boundaries of such a concurrent relationship, this court must ‘ascertain and declare what is in terms or in substance contained’ in the statutes, which requires that these different terms be given different meaning.”

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McMahon wrote that this dispute pits two statutory schemes against each other, forcing the court to balance the public interest of “two seemingly contradictory statutory schemes” before the court can decide the merits of the case and there is no clear status quo for intra-statutory conflict when implementing a new law.

“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,” McMahon wrote. “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. More fundamentally, it is in the public interest not to allow an interpretation of law which may be incorrect from preventing the opening of schools authorized by the legislature, established by the board, and chosen by hundreds if not thousands of students and their families.”

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Great Falls Public Schools Superintendent Tom Moore told The Electric that it makes sense to report ANB to OPI for the district’s new CORE School and that the district already submitted that paperwork to the Cascade County Superintendent of Schools that will then be submitted to OPI.

He said that GFPS was still on track to open the CORE School as planned.

Moore said that even if the court decision had slowed the process, GFPS was prepared to open CORE School as essentially a magnet school, but there are financial reasons that it’s advantageous to open as a public charter.

Morningside Elementary selected as GFPS’ CORE School

In the case of GFPS’s new public school, it’s being established at the existing Meadow Lark Elementary, Moore said.

Current students were offered spots at the CORE School first and the lottery for the remaining spots opened at the end of March.

Moore said the lottery applications close at midnight April 25 and the lottery drawing will be April 26.

Students not selected will be placed on a waiting list, Moore said.