On Monday, the House Judiciary Committee hosted a discussion regarding the constitutional rights of Montana university students and the constitutional authority of the state’s Board of Regents. Lawmakers listened to testimonies on a bill that would affect the policies of the board.
House Bill 517, sponsored by Rep. Mike Hopkins, R-Missoula, proposes an amendment to the Montana Constitution granting the Legislature power to direct the regents to adopt policies that safeguard the rights and civil liberties guaranteed under the federal and state constitutions. In introducing the measure, Hopkins argued that the board and in-state campuses should not be “islands of their own constitutional original jurisdiction.” He acknowledged the state constitution’s intent to separate the university system and the Legislature on matters of curriculum and programmatic selection, but said he does not believe that separation extends to the “rights and liberties” of Montanans.
Hopkins stated that the constitution, which grants the Board of Regents its authority, also prohibits the Board from disregarding the remaining provisions of the Montana state constitution.
HB 517, if approved by a two-thirds majority of the Legislature, will present the proposed amendment to a statewide vote on the November 2024 ballot. The Board of Regents consists of seven members who are appointed by the governor and require confirmation from the state Senate.
Monday’s debate was stoked by ongoing disputes over the scope of the board’s authority. Last session, lawmakers implemented several new policies on campuses only to have the laws struck down by state courts as unconstitutional. One of those was House Bill 102, an expansive firearm possession law that in part enabled students to carry concealed guns on certain parts of college campuses. The Board of Regents challenged the law shortly after its passage, arguing that it violated the board’s constitutionally vested control over campus policy. HB 102 was ultimately struck down in Lewis and Clark County District Court — a decision that was upheld by the Montana Supreme Court last year.
The other 2021 law mentioned Monday was House Bill 349, a measure barring campuses from denying privileges to student groups based on their religious, political or ideological beliefs. The law also directed colleges and universities to adopt free speech policies prohibiting them from disciplining students for harassment unless the behavior involved unwanted sexual advances or was offensive enough to deny another student equal access to educational opportunities.
HB 349 was found to be unconstitutional by a Gallatin County District Court judge last fall in a lawsuit filed by more than a dozen plaintiffs, including several former regents, Montana’s first commissioner of higher education and the faculty associations at UM and MSU. While posing a question during Monday’s hearing, Rep. Caleb Hinkle, R-Belgrade, claimed that the Board of Regents was directly involved in the litigation, which is now on appeal before the Montana Supreme Court. Deputy Commissioner of Higher Education Kevin McRae later corrected Hinkle that the board was not a party in that particular case.
During the testimony in favor of HB 517 on Monday, Tyler Coward from the Foundation for Individual Rights and Expression, a national nonprofit organization, described the Supreme Court’s decision on HB 102 as granting the Board of Regents extensive authority over the university system. Consequently, the Legislature is unable to enact laws that safeguard the rights of students.
Coward expressed that although it is generally wise to protect the university system from political interference, the current language in the constitution exceeds what is reasonable.
McRae contended that the bill should be opposed, emphasizing that Montana’s constitutional delegates of 1972 purposely instituted and empowered the Board of Regents to prevent any interference from the Legislature in the university system. According to him, this separation of powers has played a crucial role in maintaining the exceptional quality of post-secondary education in the state.
McRae emphasized that the people’s choice to entrust the authority of higher education policy to a non-political education governing board, instead of relying on the ever-changing political landscape, has historically enabled the provision of excellent education. He expressed concern that HB 517 could potentially result in multiple unforeseen and unintended consequences.
Students from Montana State University and the University of Montana testified both for and against HB 517. Those supporting the bill recalled numerous instances in which they believe students’ rights had been violated, including a recent alleged incident where members of MSU’s chapter of Young Americans for Liberty — a national conservative student activist group — were threatened while tabling on campus. The organization’s state chair, MSU student Rachael Stevenson, also told committee members that one member was “nearly arrested” in his dorm during a fall 2021 signature-gathering effort by YAL to petition against MSU’s COVID-19 mask mandate.
Stevenson stated that it is evident that students believe they might encounter negative consequences solely for voicing their opinions, and this apprehension is justified considering that students have previously experienced repercussions for similar acts.
Victoria Foster, a student at the University of Montana, expressed similar thoughts, stating that she has been compelled to suppress her “unique perspective” due to concerns about facing consequences from her peers and educators. Foster emphasized that HB 517 was not intended to target the Board of Regents but rather aimed to facilitate “constructive dialogue” between the board and the Legislature. Additionally, some individuals viewed the bill as a necessary measure to enhance the fair treatment of students, including Emma Jones, a student at MSU, who shared her frustrations regarding the handling of sexual assault cases and convictions on her campus during her testimony.
On the other hand, students who opposed HB 517 expressed worries about its potential to weaken the existing power structure of the university system and expose campuses to the fluctuating political priorities of future legislative majorities. Katie Fire Thunder, a student at MSU, emphasized the crucial importance of the Board of Regents’ non-political stance in effectively addressing the overall needs of students. She also pointed out that the board’s composition and regular meeting schedule make it more accessible to students compared to a legislative body that convenes every two years. Isabella Roccisano, the vice president of the Associated Students of MSU, shared a similar viewpoint.
Roccisano emphasized the crucial need to maintain a politically neutral university system in order to safeguard the quality of education provided to students at state universities from being influenced by fluctuating political trends. He further asserted that the appointed members of the Board of Regents possess the highest qualifications to ensure this neutrality. Roccisano underscored the importance of consistent, evidence-based decision-making in campus policies, urging for a stable framework that prioritizes students’ needs rather than subjecting them to a constantly changing landscape of educational and university-wide regulations.
As the committee turned to its own questions about HB 517’s impacts, McRae was repeatedly brought to the microphone to answer pointed questions from Republican members about the board’s view of its powers and accountability. During one exchange, Rep. Braxton Mitchell, R-Columbia Falls, asked if McRae was concerned that, should the question of an amendment be put to voters, the Board of Regents might “lose your power grab over students that you currently have?”
McRae responded by stating that the intention is not to control or manipulate students, but rather to ensure that the education provided in Montana meets the necessary standards. He suggested that if this amendment had been in place three decades ago, the Democratic legislative majority at the time could have utilized the “clean and healthful environment” clause in the constitution to support alterations in campus curriculum or programs related to natural resource extraction.
Later on, McRae revived the main argument, citing direct excerpts from the 1972 Constitutional Convention records regarding the primary concern among delegates for the establishment of the board. The transcripts revealed that the driving force behind this concern was Montana’s widely acknowledged notoriety and track record as one of the most politically contentious and academically deficient public higher education systems in the United States.
He stated, “Presently, after 50 years, we are among the two states in the country, if I’m not mistaken, that possess two public universities, specifically Tier One high research activity universities. We are confident that the current constitution has effectively ensured the provision of quality education.”
As of now, the House Judiciary Committee has yet to make any decisions regarding HB 517. However, it is essential to note that the deadline for transmitting the bill to the Senate is April 3.
