Disability ‘advocates’ oddly suing to stop Montana school choice program helping disabled students

A disability rights advocacy group is trying to kill Montana’s new school choice program for special needs students before it even gets off the ground.

Disability Rights Montana and the Montana Quality Education Coalition are suing the Montana Special Needs Equal Opportunity Education Savings Account (ESA) Program for allegedly violating the state constitution.

The program, which was approved by the legislature in 2023, would give $6,000 to $8,000 annually to disabled students to use for private education and therapies.  

“This bill does not help Montanans with disabilities,” said Tal Goldin, Director of Advocacy at Disability Rights Montana, in a press release. “Instead, it reduces public school resources while offering no assurance that students with disabilities who leave the public schools will receive appropriate educational services that meet their needs. 

“It’s a lose-lose situation,” he concludes.  

The ESA program does require parents to formally release their public school from fulfilling its legal obligations to the special-needs students. However, that doesn’t prevent the student from later re-enrolling in public school.  

And while private schools aren’t legally required to offer the same services as public schools, critics argue the public education is hardly a bastion of quality education for disabled students.  

In truth, according to Montana’s 2022 state report card and NAEP scores, just 5% of disabled Montana students read proficiently in 8th grade. Only 8% meet standards in math. The statewide average for 8th graders was 29% in both subjects.  

Additionally, the state’s report card reveals its per-pupil spending exceeds $13,000, which means funding the private education of special-needs students is far cheaper than funding public schools.  

The lawsuit mainly attacks the legality of the school choice program on technical constitutional issues related to education funding and oversight.  

“[The ESA program] violates Article X’s unequivocal guarantee of ‘equality of educational opportunity’ to all Montana students,” the complaint reads, “by directing cash payments to some students to the direct disadvantage of others.”  

In other words, the lawsuit claims granting disabled students greater education freedom isn’t fair to all the non-disabled students.  

But not everyone agrees with the plaintiffs’ interpretation of the state constitution. 

“It’s no secret that Montana public schools struggle to accommodate the unique learning needs of special-education students,” Kendall Cotton, president and CEO of the Frontier Institute, told The Lion. “Locking those kids in a school system that can’t accommodate their needs does not advance equality of educational opportunity as guaranteed by Montana’s Constitution.  

“Contrary to the plaintiff’s claims, we believe [the ESA program] actually strengthens Montana’s constitutional commitment to support a system of education which will enable every student to reach their full educational potential. This lawsuit could rip that support away from families and divert it to the one-size-fits-all public school system.”  

The lawsuit also speculates participating families could simply accrue funds year after year – since it doesn’t expire until the student turns 24 – and use them to pay for post-secondary education rather than K-12.  

However, the suit admits students are already allowed to use their ESA funds for college expenses, even though it complains the money wouldn’t be going to “special education services.”  

Both Gov. Greg Gianforte and Superintendent of Public Instruction Elsie Arntzen – who are defendants in the case – stood by the program.  

“The governor believes each child is unique and deserves access to the best education possible to meet his or her individual needs, especially for the more than 18,000 students in Montana who require specialized education services,” said a spokesperson for the governor.” 

“Montana parents know the education needs of their students better than the government,” added Arntzen through a spokesperson. “The special education savings account has specific parameters for the use of state dollars and a rigorous accountability process. Our children deserve the best education that they can receive.”