Bill Promotes ‘School Choice’ For Special Needs Children

By Keila Szpaller, Daily Montanan

February 16, 2021

Avery Monroe, 7, takes medication for epilepsy, and the medicine has set her back in school. This week, Avery asked the House Education Committee to vote yes on a bill that would allow public money to go into a savings account that would reimburse parents for private education costs for students with special needs, such as herself.

“I’m Avery, and I’m having trouble reading. I want a better school,” said Avery, holding the hand of bill proponent Kris Hansen; Hansen, founder of a private scholarship organization, shared Avery’s story with legislators on behalf of Avery’s mom, noting she had to work during the hearing.

Monday, the committee heard testimony on House Bill 329, another piece of “school choice” legislation making its way through the Montana Legislature. Rep. Sue Vinton, R-Billings, said she was sponsoring the bill at the request of Gov. Greg Gianforte.

“School choice” legislation directs public funds toward private education, and HB329 is among such bills before the Montana Legislature that have followed a U.S. Supreme Court opinion in Espinoza v. Montana Department of Revenue in 2020. Proponents laud the proposals as giving parents choice in their children’s education, but opponents argue the bills siphon taxpayer money away from state coffers to the detriment of public education.

In this case, opponents also argued the bill would direct funds away from the state’s most vulnerable population, children with disabilities, and would deprive them of protections in state and federal law, such as IDEA, the federal Individuals with Disabilities Education Act.

The committee didn’t take action on the bill Monday. However, many other education bills await executive action, and Chairman Rep. Seth Berglee, R-Joliet, said a long list of bills would be up for executive action Wednesday, although he did not cite specific legislation.

At the hearing Monday, Glenn Oppel, policy director for Gianforte, testified in support of HB329 and thanked Vinton for bringing it forward. Oppel also said the governor, a Republican, had included funding in his budget for the bill, although he did not cite a specific dollar amount.

“House Bill 329 fits in quite well with the governor’s desire to add more parental choice and flexibility into Montana’s education system,” Oppel said.

The bill provides for $75,000 in funding in the 2022 fiscal year and $30,000 in 2023 for administration. The governor’s budget office did not return a call Tuesday about the cost of the program laid out in the bill’s fiscal review; the analysis notes costs include at least a couple of employees in the Office of Public Instruction to develop and operate the program at $140,000 a year, for starters, along with other expenses.

Hansen, on behalf of Avery, said the East Helena public school had done well for Avery prior to the COVID-19 pandemic, providing plenty of special assistance. However, Hansen said that support all but evaporated in the last school year, and Avery fell behind in reading and writing.

Avery would like to attend a self-directed private school and undergo private tutoring, Hansen said, but her mom earns $10 an hour and can’t afford it. So she said the family needs help paying.

“We need a personalized option for Avery,” Hansen said. “ … She’s doing great in a million areas, but she’s just not been able to get over the communications hump.”

As drafted, the Office of Public Instruction would manage the program’s rules and account. The bill notes money can go toward expenses such as tuition, fees, textbooks, software, tutoring, educational therapies, and many other items, including “any other educational expense approved by the Superintendent of Public Instruction.”

A technical note provided as part of the fiscal review notes the bill likely violates the Montana Constitution’s prohibition of aid to sectarian schools. A legal review also notes constitutional concerns, including over an appropriation made to a private entity “not under control of the state.”

In her testimony, Beth Brenneman, with Disability Rights Montana, said she might have more criticisms of public schools’ lapses in services for students with disabilities than the bill’s proponents do — but her organization still opposes the bill.

She said that’s because IDEA in public schools protects children and their parents, so progress is possible with the law as leverage. She said the law offers both substantive and due process protections for special needs students.

“We have had to rely upon that law quite a bit, and unfortunately, we are not done,” said Brenneman, a lawyer. “There are many places where we have to enforce that law over and over again in the public school system.”

Brenneman also noted the bill does not require a qualified school to prohibit discrimination based on a person’s disability: “That seems like a pretty basic thing to have in a law like this.”

Debra Silk, with the Montana School Boards Association, also opposed the bill. At the same time, Silk, in addition to other opponents, noted she has tremendous respect for Vinton and her strong advocacy on behalf of public schools over the years.

However, Silk said all six of the Montana Public Education Center partners, each representing membership across the state, had aligned against the bill. She said among the problems are that it would take away legal protections for special needs students and requirements to address their needs.

Those requirements include special services starting at age 3, an individual education plan, a free and appropriate public education in the least restrictive environment, and regular assessments, she said.

“There is absolutely zero accountability for the private sector in this bill,” Silk said.

Silk also pointed out possible financial trouble. Schools get money based on the previous year’s enrollment, and under this bill, the district would have to send money back to OPI if a parent removes a child.

“This is a major problem for our public schools,” Silk said. “Schools have to plan. They have to hire staff … They don’t have money in their general funds to be sending money back to the state when a parent decides to try something different. That is not the way it should work.”

Plus, she said, what happens when parents change their minds and want to re-enroll their students in the public schools — after sending away money?

Superintendent of Public Instruction Elsie Arntzen spoke in favor of the bill. Others who testified in support included representatives with Americans for Prosperity, the Montana Family Foundation, and EdChoice, a national organization with a mission to support “educational freedom.”

In her closing remarks, Rep. Vinton reminded people that she has long been a supporter of public schools. But she said special needs children need specialized attention.

“The opponents that spoke today, some of whom have known me for 15 years, know that I have been a tireless advocate for public schools,” Vinton said. “I also think that it’s time that we open our minds to alternatives that might be best for our students, especially our students with special needs.”

Bills awaiting action in the House Education Committee include HB185, which would have software programming count as a foreign language in high schools for those that require it for graduation; HB186, which would let any teacher licensed outside Montana be granted a license in this state; HB279, which would increase the cap on a state tax credit from $150 to $200,000 for a couple of “school choice” programs; and other pending legislation.

The Daily Montanan is a nonprofit, nonpartisan source for trusted news, commentary and insight into statewide policy and politics beneath the Big Sky.