GOP revives debate about constitutional authority over university system

This story is excerpted from the MT Lowdown, a weekly newsletter digest containing original reporting and analysis published every Friday.

The long shadow of the 2021 Legislature fell across Helena again last week as Republican lawmakers revived a debate about constitutional authority over Montana’s university system. 

The current jurisdictional tug-of-war between legislators and the state’s seven-member Board of Regents ties back to a pair of bills passed by Republicans last session. House Bill 102 gave students the ability to carry concealed firearms on state campuses, and Senate Bill 349 barred campus officials from taking action against student groups based on the groups’ religious or political beliefs. The Board of Regents promptly challenged HB 102 in court, arguing that in approving the law the Legislature infringed on authority granted to the regents by the Montana Constitution. SB 349 was one of four bills swept up in separate litigation on similar grounds by more than a dozen plaintiffs — the Board of Regents not among them.

Fast forward to March 13, when the House Judiciary Committee heard testimony on the current Legislature’s House Bill 517, a proposed constitutional amendment that would allow lawmakers to mandate campus policies related to student rights and civil liberties. Republicans on the committee routinely invoked the legal challenges to 2021’s HB 102 and SB 349, with Rep. Braxton Mitchell, R-Columbia Falls, maligning what he called the regents’ “power grab over students.” Deputy Commissioner of Higher Education Kevin McRae and other HB 517 opponents countered that the framers of Montana’s Constitution placed campuses in the board’s hands to insulate them from the Legislature’s “fluctuating politics.”

The debate continued March 15 as the Senate Education and Cultural Resources Committee weighed the confirmation of two regents appointed by Gov. Greg Gianforte. Lewistown native Jeff Southworth and student regent Norris Blossom were each questioned about the constitutional rights of students. In response, Blossom said Montana students currently enjoy all the rights on campus that they enjoy off of them, and Southworth pushed back on the suggestion that in-state campuses restrict free speech activities to designated areas. The origin of those inquiries came into sharper focus when Sen. Keith Regier, R-Kalispell, asked Southworth whether Montana’s entire lawbook applies to campuses, or only to parts of them. Southworth asked for more clarity, noting that he’s not an expert on state law.

“I’m talking about the laws of Montana,” Regier said. “The laws, from speed limits to taxes to what time we get up in the morning.”

“Absolutely, yes,” Southworth responded. “We are not above the law.”

The exchange skirted the deeper question raised in recent litigation: Can the Legislature pass a law dictating campus policy or practice? So far, the answer from Montana courts has been “no.” A district court struck down HB 102, and the Montana Supreme Court upheld that decision last summer. SB 349 was similarly overturned at the district court level and is currently on appeal to the state Supreme Court. In its opening brief last month, the state challenged the plaintiffs’ standing to litigate the issue, arguing that the only party rightly positioned to defend the Board of Regents’ authority is the board itself. The plaintiffs have not yet filed their response.

Southworth and Blossom were both confirmed by the full Senate on Monday, March 20.