HB 517 proposed to amend Article X, Section 9, of the Montana Constitution by providing the legislature with the authority to enact laws to protect certain constitutional rights of students, faculty, and staff of the Montana University System. Specifically, the bill proposed two exceptions to the general rule that the “government and control of the Montana university system is vested in a board of regents of higher education.” One exception is that the “legislature may enact laws requiring the board of regents of higher education and units of the Montana university system to adopt and maintain policies and practices that protect freedom of speech, freedom of expression, and due process. In pursuit of these protections the state may provide judicial remedies.” The second exception is that the “board of regents of higher education and units of the Montana university system are not exempt from laws of general applicability.” I voted against this constitutional amendment because of the potential for infringement on academic freedom and because of its attempt to bring the board of regents under legislative control.
There was some confusion during the testimony at the committee hearing on the intent or effect of HB 517. Some of the testimony concerned the violation of students’ rights of free speech and assembly on campus, while other testimony commented on teachers’ biases in the classroom or the potential for partisan political influence of the legislature on the universities. The sponsor argued that the intent is solely to protect certain constitutional rights of students, not to infringe upon academic freedom. But the language of the bill does not make a distinction between activities within and outside the classroom. The language is too vague. For that reason, there is high potential that legislation passed pursuant to this bill could infringe on academic freedom.
The background to HB 517 is the judicial overruling of two bills passed by the 67thMontana Legislature in 2021. One was HB 102, which enabled students to carry concealed guns on parts of state campuses. The other was HB 349, which barred campuses from denying privileges to student groups based on their religious, political, or ideological beliefs and directed universities to adopt free speech policies. Both bills were found to be unconstitutional (for HB 102 only as it pertains to state campuses) by district courts because the legislature had exceeded its authority under the constitution, which gives the board of regents of higher education “full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system.” The Montana Supreme Court upheld the decision on HB 102 but the decision on HB 349 is still pending. A third bill, HB 218, involving free speech on campuses was not challenged in court and is codified as Title 20, Chapter 25, Part 15 (Expressive Activity on Campus) in the Montana Code Annotated (MCA).
HB 517 proposed to change the constitution so that legislation directed at the Montana university system doesn’t get overruled again. Instead of changing the constitution, we should use the tools already available to influence the board of regents of higher education and to secure the constitutional rights of students. Although there are no formal checks and balances in a true separation-of-powers system, the board of regents does not work in a vacuum. The governor appoints members of the board of regents and the senate confirms those appointments. The governor is an ex officio member of the board who can vote in the event of a tie. Six of the seven board members serve seven year overlapping terms. One of the members is a full-time student who serves a one-year term with the possibility of reappointment to successive terms. A governor, therefore, who serves two consecutive terms has the opportunity to appoint every member of the board. In addition to the power to confirm or reject the governor’s appointments to the board, the legislature has an education interim committee that has “administrative rule review, draft legislation review, program evaluation, and monitoring functions” (MCA 5-5-224) for the board of regents of higher education. Finally, if a students’ rights are violated (and after the remedies provided by the school are exhausted), the proper forum for adjudication is the courts.
Paid for by Rusk for Legislature. P.O. Box 531, Corvallis, MT 59828. Republican.