Montana families deserve their education options back

Montana students trying to access that state’s new Education Savings Accounts (ESAs) couldn’t use them this school year, leaving families wondering if the Montana Supreme Court will cancel the program indefinitely.

Created in 2023 under HB 393, the ESA program provides families of special needs students a flexible education alternative to the public school system. 75 special needs students have participated in the program, and the state received an additional 41 new applicants during its winter enrollment period.

While ESAs give families of special needs students the freedom to choose options like private school, homeschool, tutoring, or a combination of learning therapies, public school advocates often claim programs are "unconstitutional" for using public money to fund private education.

In January 2004, a lawsuit seeking to permanently stop the ESA program was filed by Montana Quality Education Coalition and Disability Rights Montana. Governor Gianforte and Superintendent Hedalen are named as defendants, and Rep. Sue Vinton, who sponsored HB 393, is named as an intervenor in defense of the program.

Lewis and Clark County District Court Judge Mike Menahan granted an injunction last December, citing the funding language. The case is currently on appeal and being briefed in the Montana Supreme Court. Oral arguments are expected to begin this fall.

The state argues that the Legislature created the ESA program to support special needs students and it shouldn’t be dismantled because a lower court judge believes lawmakers should have used different funding language. The  Montana Constitution does not require an additional appropriation for private purpose trust funds, and the lower court erred in invalidating the clear intent of the Legislature.

Under HB 393, funding is appropriated for school districts, and when an eligible student participates in the ESA program, a portion of those funds is transferred into an individual trust account. It is the Office of Public Instruction's duty to reimburse the family for allowable educational expenses submitted.

Rep. Vinton’s attorneys argue that once the funds have been lawfully appropriated and directed into a trust account for beneficiaries, Montana’s Constitution does not require lawmakers to appropriate the same money again before distribution.

Lawmakers created the ESA program under HB 393 with clear intent to fund the ESAs. The legislation was specific in identifying participants, defining allowable educational expenses, establishing individual accounts, explaining how the money flowed through the program, and directing the Office of Public Instruction to handle reimbursement and administrative functions.

This program was working for participating families, and stopping the program not only ignores legislative intent, but also disrupts the lives of families whose children depend on daily routine. The appeal also raises a separate problem with the lower court decision.

Opponents have argued that the ESA program financially harms public schools. But the District Court found disputed material facts about the program’s actual financial effect on districts. That should have mattered when deciding how broadly to block the program.

Instead, according to the appeal, the court relied on concerns about “school district financing” to justify shutting down the entire program, even after determining that the financial-harm question could not be resolved at summary judgment.

Rep. Vinton argues that contradiction is another reason the Montana Supreme Court should reverse the injunction and put Montana families first.

Because behind arguments about appropriations, statutory interpretation, and injunctions are real families trying to find an education option that works for their children.

All students learn differently, and a child with a disability may need specialized instruction, intensive tutoring, therapy, a parent-led homeschool model, or any other learning environment that doesn’t fit within the traditional public school system. This is especially true in smaller rural districts.

Options and choices empower parents. And giving families access to education alternatives is not an attack on public education. The Legislature made a policy choice to help parents when it passed HB 393, and Rep. Vinton sponsored the legislation to turn that choice into law.

Now the Montana Supreme Court must analyze the Constitution and determine whether the District Court was correct to ignore unmistakable legislative intent and stop the program by imposing nonexistent funding requirements and considering unvalidated opinions.

Meanwhile, Montana families with special needs children are left waiting on the sidelines