Montana lawmakers debate Board of Regents authority

The House Judiciary Committee played host Monday to a debate over the constitutional rights of Montana university students and the constitutional authority of the state’s Board of Regents as lawmakers heard testimony on a bill impacting the board’s policies.

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.

“The same constitution that gives the Board of Regents its authority, that grants the Board of Regents its authority, is incapable of granting to the Board of Regents the authority to ignore the rest of the Montana state constitution,” Hopkins said.

If passed by a two-thirds majority of the Legislature, HB 517 would put the proposed amendment up for a statewide vote on the November 2024 ballot. The Board of Regents is composed of seven members appointed by the governor and subject to confirmation by 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.

While testifying in support of HB 517 Monday, Tyler Coward with the national nonprofit Foundation for Individual Rights and Expression characterized the Supreme Court’s ruling on HB 102 as giving the Board of Regents “near-total control” over the university system, rendering the Legislature incapable of passing laws to protect students. 

“While insulating the university system from political interference is generally advisable, the current language in the constitution goes far beyond what is prudent,” Coward said.

Arguing against the bill, McRae attempted to make the case that Montana’s constitutional delegates in 1972 established and empowered the Board of Regents explicitly to prevent the Legislature from exerting its political will on the university system. Without such a separation of powers, he said, the quality of post-secondary education in the state would not be nearly as high as it is today.

“This high-quality education, history shows, was made possible precisely because of the people’s decision to assign higher education policy authority to a lay-citizen education governing board rather than to the fluctuating politics of the legislative process,” said McRae, stressing his view that HB 517 carries the risk of numerous “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.

“It is clear that students feel they may face repercussions simply due to expressing their beliefs, and this fear is not unfounded, as students previously have faced consequences for such actions,” Stevenson said.

Victoria Foster, a University of Montana student, echoed that sentiment, telling lawmakers that she has felt obligated to silence her “individual voice” in fear of “repercussions from my peers and educators.” Foster argued that HB 517 was “not an attack” on the Board of Regents but rather a way to “promote healthy conversation” between the board and the Legislature. Others framed the bill as a needed step in improving due process for students, among them MSU student Emma Jones, who testified about frustrations over the handling of sexual assault investigations and convictions on her campus.

Meanwhile, students who rose in opposition cited concerns that HB 517 would undermine the current delineation of power over the university system and subject campuses to the shifting political agendas of future legislative majorities. MSU student Katie Fire Thunder said the Board of Regents’ “apolitical nature” was essential in addressing the needs of students “as a whole,” and suggested that the boards makeup and meeting schedule make it more accessible to students than a biennial legislative body. Isabella Roccisano, vice president of the Associated Students of MSU, offered a similar assessment.

“Keeping the university system apolitical is vitally important to ensure that the education students receive at state universities is not influenced by changing political tides,” said Roccisano, adding that the appointed members of the Board of Regents are the most qualified people to do so. “Students deserve consistent, research-based policymaking on their campuses, not a constantly shifting set of educational and overarching university policies.”

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?”

“It’s not about a power grab over students. It’s about the quality of education meeting the needs of Montana,” replied McRae, hypothesizing that had such an amendment been enacted 30 years ago, Montana’s then-Democratic legislative majority could have used the constitution’s “clean and healthful environment” clause to justify a change in campus curriculum or programs involving natural resource extraction.

McRae resurrected that core argument later on, quoting directly from the 1972 Constitutional Convention transcripts about the driving concern among delegates for the board’s formation:  “Montana’s well-documented reputation and history for one of the most politically controversial, poorest quality public higher education systems in the United States.”

“Today, 50 years later, we are one of only two states in the nation I believe that have two universities — two public universities — that are Tier One high research activity universities,” he said. “The quality of education, we believe, has been pretty well taken care of under the current constitution.”

The House Judiciary Committee has not yet taken action on HB 517, which faces a deadline of April 3 for transmittal to the Senate.