Montana School Law Conference Wilfried Reilly
Screenshot of Kentucky State University assistant professor of political science Wilfred Reilly speaking to a virtual gathering at the Montana School Law Conference on Nov. 17, 2021.

Public school officials and educators got a nuanced look at the legal backdrop of several ongoing debates in K-12 education Tuesday during a virtual School Law Conference hosted by the Montana Office of Public Instruction. The conference touched on some of the thorniest issues facing school boards, teachers, parents and students in 2021, including critical race theory, standardized testing and parental and transgender rights.

The most illuminating nugget of the day was delivered during a briefing on recent changes to state laws affecting Montana’s K-12 schools. Deputy Solicitor General Brent Mead with the state attorney general’s office spoke to a range of new laws passed by the Montana Legislature this spring, among them Senate Bill 400, which allows parents to sue a government agency if they believe their parental rights have been infringed. But in explaining the ramifications of Montana’s new vaccine discrimination law on public schools, Mead said unequivocably that a carveout in the new law for pre-existing student immunization requirements does not extend to COVID-19 vaccines.

In other words, Mead said, “[HB] 702 still prohibits discrimination against individuals in the school setting if they have not received the COVID-19 vaccination because COVID-19 is not one of the diseases that’s listed within Title 20.”

Immunizations listed in Title 20 of Montana code include measles, mumps, rubella and pertussis. Mead said that adding COVID-19 to the list would require legislative action.

The rest of the conference predominantly featured in-depth presentations on legal questions now swirling around public education in Montana and across the nation. The day kicked off with a talk from Dr. Yong Zhao, a University of Kansas professor who has spoken throughout the country about the need for a paradigm shift in America’s public education system. On Tuesday, Zhao emphasized the importance of individualized education that recognizes and fosters a child’s particular abilities, and questioned the path that educational policies have taken in recent decades.

“If you look at our school reform, school changes, they almost have nothing to do with children,” Zhao said. “We’ve changed the curriculum. We’ve changed the pedagogy. We’ve forced teachers to be highly qualified, we’ve fired school principals. We invest more money in this program or take money away from that program. We’ve cut down our curriculum. We cut down recess, we cut down art, we cut music, we increased reading. All of this had nothing to do with children.”

Zhao placed much of the blame for shortcomings in public education on what he characterized as an outsized focus on standardized test scores and student performance in core areas like reading and math. At a time when schools across Montana are struggling to understand how the pandemic has affected students’ academic progress, Zhao cautioned educators against falling into what he called the “learning loss trap,” and urged them to help children become “owners of their own learning.”

“If we want to avoid a learning loss trap, instead of testing our students, instead of forcing them into reading and math only, can we do something different?” Zhao said. “First of all, can I suggest we meet our students where they are? Can we meet with each individual student? I know schools have a hard time, a teacher is teaching 25 students. But if you restructure the staff, if we build a strength profile for students, we will be able to talk to individual students to know where they are.”

Wilfred Reilly, an assistant professor of political science at Kentucky State University, addressed the issue of critical race theory, or CRT, which has become an increasingly high-profile point of public school debate in the U.S. this year. Reilly, the author of “Hate Crime Hoax: How the Left is Selling a Fake Race War,” first rose to national prominence by debating against members of the alt-right during the 2016 presidential election. He’s since appeared on numerous conservative media outlets in recent years and to challenge the argument that racism contributes to achievement gaps and criminal justice inequalities.

The question that’s proven particularly maddening for educators and public observers is what, exactly, constitutes CRT in an educational setting. During Tuesday’s conference, Reilly identified the three assertions he believes are shared by all the CRT materials he’s seen. The first, he said, is that society is structured to support institutional racism. The second is that the existence of institutional racism is proven by gaps in performance and achievement that indicate prejudice. And the third, he continued, is that the solution to institutional racism is equity.

“It might not be possible to reach equity all at once across all groups, but that’s the idea,” Reilly said. “If you have more black kids getting suspended than white kids … you don’t need to really interrogate why that is. The goal is getting the numbers to equality, either by suspending more white kids or fewer black kids.”

“What you can’t do is make students confess to past sins for their group. You can’t make whites apologize for the past behavior of whites or blacks for the currently higher black crime rate or anything along those lines.”

Wilfred Reilly, assistant professor of political science at Kentucky State University

Reilly said that in his opinion, arguing that achievement gaps in America are due to genetics or “hidden racism” is “idiotically simplistic.” He added that the spotlight now shining on CRT is part of a battle between “leftists and traditional liberals” for control of the political left wing. Ultimately, he said, the decision whether to embrace CRT in public schools is a matter for local school officials to decide. But Reilly did speak favorably of a free curriculum called 1776 Unites, which promotes positive messages and stories about Black history in America and arose as a counter to the 1619 Project, a CRT-adjacent initiative developed by the New York Times. Reilly said he serves on the advisory board for 1776 Unites.

Reilly also briefly touched on a 25-page legal opinion issued in May by Montana Attorney General Austin Knudsen that characterizes CRT as potentially discriminatory and pledges to assist parents or students with complaints about race-based discrimination in public schools. Reilly said his understanding of the opinion is that it bans not only racial discrimination in schools, but also the labeling of any particular race “as bad or as failed.” A Montana school could teach CRT, he continued, as long as it does so alongside other educational theories.

“What you can’t do,” Reilly said, “is make students confess to past sins for their group. You can’t make whites apologize for the past behavior of whites or blacks for the currently higher black crime rate or anything along those lines. You can’t make students list out accurate negative stereotypes for their group or engage in ‘privilege walks,’ which have become increasingly common. And I think that this is a pretty coherent rule.”

The conference also delved into the question of parental rights, which Montanans have recently invoked to challenge school masking policies, attracting support from state Superintendent Elsie Arntzen. Anthony Johnstone, constitutional law professor at the University of Montana, gave attendees a detailed lesson on the history of parental rights in Montana and America. He explained that those rights, at the federal level, are primarily rooted in the Civil Rights Act and the U.S. Supreme Court’s interpretation of the 14th Amendment, which the court has applied to various questions about civil rights and liberties.

At the state level, Johnstone said, educational matters are largely left to local districts. The Montana Constitution does guarantee the rights of citizens to a free and quality public education. Even in situations where the state is authorized to deny the rights of a parent, he continued, that parent has the right to due process. In short, Johnstone said, “parental rights are not absolute.”

“Perhaps the most important lesson here with respect to parental rights is that the Montana Constitution sets up a process for parents, students and other Montana stakeholders to be heard with respect to the educational system,” he said, “first and foremost through their school districts and the boards of trustees who have primary supervision and control over the schools in each school district.”

Tuesday’s conference concluded with a presentation by Montana Assistant Solicitor General Christian Corrigan titled “Title IX and Protecting Women’s Sports Bill.” The primary subject of Corrigan’s talk was a law passed by the Legislature this spring, House Bill 112, that bars transgender women and girls from participating on women’s sports teams in Montana schools. HB 112 is currently facing a legal challenge in Gallatin County District Court by the Montana Federation of Public Employees as well as a collection of individuals and university faculty associations. Similar laws in other states have also triggered legal battles. Meanwhile, Knudsen and 19 other Republican attorneys general this fall filed a legal challenge against federal protections for transgender individuals

Corrigan, who previously worked for the U.S. Department of Education’s Civil Rights division under President Donald Trump, spoke about how a 2020 Supreme Court ruling on gender identity discrimination impacted Title IX, the federal law prohibiting sex-based discrimination in schools that receive federal funding. Corrigan said there’s a “relatively strong case” that Title IX is a separate statute from the one involved in the 2020 court ruling, adding that he believes the Supreme Court did not intend for its decision to apply to Title IX as well. 

“My thought is we are going to see a great deal of litigation or continued litigation and interest in these things, and obviously that’s something the attorney general’s office is going to be involved in,” Corrigan said. “Schools at local levels all the way up to the state education agencies like OPI are going to be involved in this.”

Corrigan continued by saying that, given the potential for lawsuits and loss of federal education funding if HB 112 puts Montana schools in violation of Title IX, the issue is one school district should “pay attention to.”

“And,” Corrigan added, “you know, if the Montana law stands, there is a private cause of action including damages against the school if [students] are denied equal athletic opportunity.”

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Alex Sakariassen is a 2008 graduate of the University of Montana's School of Journalism, where he worked for four years at the Montana Kaimin student newspaper and cut his journalistic teeth as a paid news intern for the Choteau Acantha for two summers. After obtaining his bachelor's degree in journalism and history, Sakariassen spent nearly 10 years covering environmental issues and state and federal politics for the alternative newsweekly Missoula Independent. He transitioned into freelance journalism following the Indy's abrupt shuttering in September 2018, writing in-depth features, breaking...