Public employees union, former regents, faculty and students sue over campus bills

The Montana Federation of Public Employees, along with several other organizations and individuals, filed a lawsuit Thursday challenging four new laws recently passed by the 67th Montana Legislature and signed by Gov. Greg Gianforte. 

This latest legal challenge to legislation approved in 2021, which was filed with the Montana Supreme Court against Gianforte and the state, cuts straight to a much-debated issue regarding the Board of Regents’ constitutional authority over the Montana University System. MFPE and its fellow petitioners, including several former regents, faculty members, university students, Montana’s first commissioner of higher education and the Montana Public Interest Research Group (MontPIRG), allege that lawmakers encroached on that authority in approving measures that allow concealed carry of firearms on campuses, restrict the participation of transgender athletes, broaden free speech and free association protections, and limit MontPIRG’s voter-outreach activities in certain campus facilities. The filing came one day after the Board of Regents voted unanimously to pursue their own challenge against the concealed carry law, House Bill 102. 

“The people of Montana have spoken, and they demand our Constitution be upheld and respected,” MFPE President Amanda Curtis said in a statement announcing the lawsuit. “On behalf of the Montana University System’s students, staff and faculty, we thank and applaud the Montana Board of Regents for their decision to protect the authority invested in them by the people of Montana.”

In the filing, MFPE and other petitioners said they may move to consolidate their lawsuit with that of the regents, though they acknowledged that the scope of their litigation is broader than what the regents intend to file. The petitioners are represented by Great Falls attorney Raph Graybill, who lost his Democratic bid for state attorney general to Austin Knudsen last fall, as well as James H. Goetz and Jeffrey J. Tierney of the Bozeman-based firm Goetz, Baldwin and Geddes. The Office of the Commissioner of Higher Education said the regents do not have a comment in response to MFPE’s filing. 

In response to the lawsuit, Brooke Stroyke, a spokesperson for Gianforte, said via email, “The governor’s office generally does not comment on ongoing litigation, but will staunchly defend the constitutionality of these laws.” 

Department of Justice spokesperson Emilee Cantrell provided the following statement to Montana Free Press by email Friday.

“Every single statewide candidate the MFPE endorsed in the last election lost. After failing at the ballot box, they are now hoping their liberal allies on the court will stop the clear will of the voters. Montanans overwhelmingly rejected the Democrats’ extremist agenda in November, so they’re adopting the national playbook used against Trump: filing as many lawsuits as they can in front of left-wing judges. This is why reforming the Montana judiciary and stopping the practice of liberal trial lawyers hand-picking judges is so important for the future of the state.”

Cantrell’s comment regarding “reforming the Montana judiciary” appears to refer to the Legislature’s ongoing investigation of the Montana Supreme Court over alleged judicial bias. 

The lawsuit seeks answers from the state Supreme Court to two specific questions. The first is whether the Legislature infringed on the regents’ constitutional authority in passing the four laws. The second is whether it was unconstitutional for the Legislature to make $1 million in HB 102 implementation funds for campuses contingent on the regents not suing over the law. HB 102 sponsor Rep. Seth Berglee, R-Joliet, said in response to the regents’ decision Wednesday that the funding is now “off the table.”

“Although the line between the regents’ power and the authority of the Legislature is not always clear, the challenged measures are beyond the pale,” the lawsuit claims. “They all amount to legislative overreach into the constitutional prerogative of the regents.”

While Thursday’s filing addresses the broad constitutional concerns at play, it also includes concerns specific to each bill being challenged. Here’s a quick rundown:

House Bill 102 allows for concealed carry of firearms on Montana campuses with the exception of certain facilities and at athletic and entertainment events. The lawsuit notes that HB 102, which goes into effect on campuses June 1, is a particular motivating concern for the three individual students listed as petitioners. It further alleges that “it is not up to an overbearing majority of the Legislature to impose their views on guns onto the state universities.”

House Bill 112 bars transgender women from participating on collegiate women’s sports teams. The lawsuit indicates that such policies are currently the purview of university athletic directors, subject to the supervision of the regents, and that as members of the National Collegiate Athletic Association, Montana’s major universities must abide by NCAA rules regarding transgender athletes.  

House Bill 349 revises free speech and free association protections to prohibit universities from limiting student groups’ access to funding and campus facilities based on a group’s stated beliefs or activities. Supporters of the bill said it would prevent discriminatory harassment among students. MFPE’s lawsuit counters that it would do the opposite by forbidding a university from taking disciplinary action in such situations. The lawsuit asserts that HB 349 “seems to invite student harassment as long as it doesn’t go too far.”

Senate Bill 319 was amended during the final week of the Legislature to include language barring MontPIRG from conducting voter registration or signature gathering efforts in campus dorms, dining halls and athletic facilities. It also requires that an optional $5 student fee supporting MontPIRG be presented to students at the University of Montana, where MontPIRG is based, as an opt-in rather than opt-out option. According to the lawsuit, MontPIRG is concerned that the new law will “undercut its campus funding” and create “onerous and unconstitutional restrictions on voter registration and other political activities.”

This story was updated May 21, 2021, to include post-publication comment from Gov. Gianforte’s office, and again May 25, 2021, to include the full slate of lawyers representing the plaintiffs.