Sex ed drives raft of public education proposals

Updated Feb. 28, 2023: The Senate Judiciary Committee passed Senate Bill 337 on a party-line vote Monday. The bill was amended to address several concerns, including the ability of school employees to provide emergency medical assistance to students and the ability to protect students and educators in situations involving potential domestic abuse. The amendment also explicitly grants enforcement authority to the state superintendent of public instruction.

House Bill 502 and House Bill 566 were both passed Monday evening by the House Education Committee, the former on an 8-5 vote and the latter unanimously. HB 502 was amended to strike language that required parental notification of student-initiated conversations about human sexuality and that established a penalty of “gross neglect of duty” for educators who violate the law. HB 566 was amended to clarify that student-initiated discussions are not considered sex ed instruction, to specify materials that districts are required to post online, and to clarify that violation of the law may result in disciplinary action against an educator’s license by the Board of Public Education.

The Senate Education and Cultural Resources Committee also heard testimony Monday on Senate Bill 413, sponsored by Sen. Carl Glimm, R-Kila, barring public school districts from providing human sexuality instruction to students below sixth grade. Proponents including Superintendent Elsie Arntzen said the bill would address parental concerns about the “sexualization” of young students, a point raised repeatedly regarding previous sex ed bills. Opponents also echoed earlier testimony, arguing that SB 413 would infringe on the constitutional authority of the Board of Public Education and local school boards to set instructional standards and would endanger students who enter puberty before sixth grade by preventing them from receiving information about their experience.

Debate over education policy at the Montana Legislature took several turns recently into the arena of human sexuality, specifically what that instruction looks like in K-12 public schools and how parents are notified about those lessons.

The conversation came to a culmination late last Friday as lawmakers on the House Education Committee heard public testimony on a proposal to change parental notification laws for sex education. House Bill 502, sponsored by Rep. Kerri Seekins-Crowe, R-Billings, is a follow-up to a 2021 law requiring that schools give parents 48-hour notice of any sex-based instruction. HB 502 would expand the notification window to a maximum of 10 days and require advance notice of any such instruction introduced by students. The bill also seeks to increase the penalty for educators who violate the law.

Seekins-Crowe said HB 502, introduced at the request of state Superintendent Elsie Arntzen, seeks to address growing frustration among parents about sex education in public schools while also tackling a host of concerns raised by educators across Montana in the wake of the 2021 law’s passage.

Supporters of the bill largely echoed the first part of Seekins-Crowe’s argument. A trio of parents — two of them representing the Yellowstone County chapter of the conservative nonprofit Moms for Liberty — characterized HB 502 as a step toward greater transparency in sex ed curriculum and criticized the type of instruction currently being delivered throughout the state.

“As parents, we absolutely want to be notified each and every time sex ed or sexually explicit material is being taught in school,” Jessie Browning with Moms for Liberty told the committee. “Yearly is not good enough. We want to either be aware and pull our kids out of class that day or know what topic is covered in class so that we can have discussion about it later at home with our kids.”

As for resolving ongoing concerns brought by teachers, members of Montana’s major education associations cast serious doubt on HB 502’s approach. Speaking in opposition to the bill, Montana School Boards Association Executive Director Lance Melton said that requiring repeated notifications throughout the year would take time away from classroom instruction, and that increasing the penalty to a finding of “gross neglect of duty” threatens to strip teachers not only of their jobs but of their “right to earn a living” in Montana or elsewhere. Further, Melton stated that the addition of students to the list of potential sources of sexual instruction raises a litany of questions about when the law might be applied. He posited that school employees may have to monitor hallway or playground conversations between students for any impropriety that they, as educators, would be held liable for not noticing to parents.

“This is a Pandora’s box you don’t want to open, or at least that we recommend you do not do so,” said Melton, adding that his organization and others worked with lawmakers in 2021 to remove a similar student inclusion provision from that session’s sex ed proposal, Senate Bill 99.

Friday’s debate was in many ways a reversal of the education committee’s discussion earlier in the week over House Bill 566. That proposal, introduced by Rep. Fred Anderson, R-Great Falls, would strike last session’s 48-hour notice requirement from state law, effectively returning Montana schools to a once-a-year sex-ed notification. HB 566 would also remove lessons related to reproductive rights, sexual orientation and gender identity from the state’s definition of human sexuality instruction.

During an initial hearing Wednesday, Anderson likewise referred to HB 566 as an effort to address concerns arising from SB 99’s passage nearly two years ago. His approach, crafted in consultation with Melton and a collection of school law attorneys, garnered support from state education associations, including the Montana Federation of Public Employees and the School Administrators of Montana. The latter’s executive director, Rob Watson, acknowledged that respecting a parent’s decision regarding their child’s exposure to sensitive topics is an important part of a strong parent-teacher relationship. But, Watson continued, portions of SB 99 have created confusion for teachers and parents about what qualifies as sex education, resulting in “inconsistent application” of the notification requirements.

Arntzen rose in opposition to HB 566, arguing that stakeholders need to find some “common ground” on what parental notification looks like and what timeline best meets the demands on both sides. She also took issue with the narrowed scope that HB 566 applies to such notification, requiring it only for instruction in science or health enhancement courses where students are separated by sex. Jeff Laszloffy with the Montana Family Foundation voiced similar opposition to removing lessons about gender identity and sexual orientation from the definition of sex-based instruction requiring notification, referring to those topics as “the hot-button subjects that have gotten parents riled up.”

The hearings on HB 566 and HB 508 were relatively short compared to last Monday’s two-hour debate over Senate Bill 315. That proposal, sponsored by Sen. Mary Ann Dunwell, D-Helena, would enable school districts to implement “age and developmentally appropriate” education on personal and sexual health, safety and consent. 

In speaking before the Senate Education and Cultural Resources Committee Feb. 20, Dunwell said SB 315 seeks to ensure that such lessons are medically accurate and inclusive of the potential impact that adverse experiences can have on a student’s health and decision-making. She also stressed that the bill requires districts to submit reports on comprehensive sex education to the Office of Public Instruction, prohibits districts from requiring students to attend those classes if their parents object, and attempts to make all related curriculum easily accessible to parents.

“The bill requires that parents be able to review the instructional materials electronically or in-person, and schools must post this curriculum on their websites along with the contact information for a person or persons who can respond to inquiries,” Dunwell said.

The public testimony on SB 315 crystallized the broader sentiments driving this session’s focus on sex education. Supporters included a long line of educators, civil rights advocates, health care workers and students. Collectively, they framed SB 315 as a way to promote fact-based and culturally sensitive instruction on human sexuality and discourage classroom discrimination on the basis of sexual orientation or gender identity. Missoula student Max Berndt, who identified themselves as non-binary, said SB 315 would directly address challenges that LGBTQ students in the state are currently experiencing.

“I’m tired of having my identity treated like a taboo subject,” Berndt said, “and I’m sick of my educators being so restricted in their teaching that they feel more like babysitters than adults who are encouraging young minds to explore and understand all issues and problems relevant in today’s society.”

Paul Reisig, executive director of the Montana Quality Education Coalition, spoke against SB 315 on behalf of his and five other statewide education associations, arguing that the bill infringes on the constitutional responsibilities of the Board of Public Education and locally elected school boards to set instructional standards. But the broad swath of opponents put forth a different argument: that it’s a parent’s duty — not a public school teacher’s — to instruct children on human sexuality. A steady stream of parents shared their view that public school students in Montana are being bombarded with sex-based instruction, much of which, they claimed, includes lessons on “controversial ideologies.” 

“I think you guys probably have enough moral fiber and character in you to oppose such a thing being introduced to children and stealing their innocence,” Montana resident Jacob Handy told the committee. “I don’t think anybody would want that on their table, on their heart, on their moral conscience.”

Those same parental concerns emerged again on Friday during testimony on Senate Bill 337, a proposal from Sen. Theresa Manzella, R-Hamilton, to outline nearly a dozen specific rights guaranteed to parents under state law. Manzella’s list includes the right to direct the education and upbringing of a child and to access all educational records related to that child. 

Supporters, including Browning with Moms for Liberty, applied the frustrations over sex education more broadly, arguing before the Senate Judiciary Committee that public schools in general need to be subject to greater transparency and contain their instructional efforts to core areas such as math, reading and science. Cheryl Tusken, former director of the Montana chapter of Parents’ Rights in Education, claimed that past parental efforts to bring more transparency to school curriculum in Bozeman were met with “contempt.” Several other proponents said they felt Montana’s Youth Risk Behavior Survey — conducted annually by the Office of Public Instruction — contained inappropriate questions about student sexual activity and drug use.

Watson and other opponents from the public education sector said they appreciated portions of SB 337 that would codify existing policies and practices in state law. And they reiterated their stance that parental involvement and collaboration in education is critical to student success.

But Jenny Murnane Butcher, deputy director of Montanans Organized for Education, argued that sections of the bill dealing with parental consent not just for human sexuality instruction but for medical and mental health interventions could prove burdensome and dangerous. Watson said other provisions may run afoul of both the U.S. and Montana constitutions, namely the rights of minors to equal protection and freedom of assembly. Beth Brenneman, speaking on behalf of the Montana Coalition Against Domestic and Sexual Violence, expressed fear that mandating parental access to medical records, counselor evaluations and other information could put victims of domestic abuse — and their teachers — at risk.

The fate of each of these bills, along with the broader debate fueling them, will be determined this week as the Legislature approaches its Friday midpoint. Dunwell’s SB 315 has already been tabled in committee on a party-line vote, but the dueling proposals over sex education notification from Seekins-Crowe and Anderson still await action in the House Education Committee, as does SB 337 in the Senate Judiciary Committee.

This story was updated Feb. 28, 2023, to include post-publication bill activity.