The lead attorney for Montana’s public education agency Wednesday characterized the changes stemming from new obscenity and religious expression laws as relatively minor, despite strong opposition to the measures from educators and librarians as they were debated by the state Legislature this year. The assessment came during the second of four post-session forums hosted by state Superintendent Elsie Arntzen.
As with a June forum focused on the distinctions between Montana’s two new charter school laws, Wednesday’s discussion was primarily led by Rob Stutz, chief legal counsel for the Office of Public Instruction. Stutz conducted a guided tour of language adopted by the 2023 Legislature, beginning with House Bill 234. The bill, sponsored by Rep. Bob Phalen, R-Lindsay, initially sparked concern among educators, librarians and museum staff about potential exposure to criminal penalties for maintaining certain materials in classrooms or in library and museum collections.
Stutz said that the final version of HB 234, signed by Gov. Greg Gianforte in May, changed “very little” in the law that has defined obscenity and the criminal charges associated with its display or dissemination in Montana for the past 50 years. The bill does grant school districts the ability to adopt stricter local policies regarding obscenity — a power already granted to county and municipal governments. But even with the bill’s passage, Stutz said the law is “no more restrictive than it’s ever been.”
“Nothing was changed about the substance of obscenity [or] the crime of obscenity in Montana, except to give school districts flexibility to adopt more rigorous policies,” he said.
Later, Stutz delved into a pair of bills, passed largely on party lines, that broaden existing law protecting religious expression in the public school system. House Bill 744 allows students to engage in conversations about religious beliefs or practices with other students or teachers, while House Bill 745 stipulates that students may read from the Bible or other religious materials during their free time or to meet classroom requirements for self-selected reading. The latter also clarifies that prayer is permitted on school grounds or school-sponsored events, but that individuals cannot be compelled to pray. Both bills were sponsored by Rep. Greg Kmetz, R-Miles City, and signed by Gianforte in April.
At its peak, the hour-long online forum saw 24 participants Wednesday. David Saslav of Great Falls weighed in several times to inquire about the motivations behind the bills, asking Stutz if the changes had been propelled by specific incidents involving obscene materials displayed in schools or disciplinary actions taken against students for expressing religious views. Stutz responded by saying that he couldn’t speak to the motivating factors behind the bills, only the legal implications of their passage.
The review of the two religious expression bills also fed a brief discussion about U.S. Supreme Court precedent governing religious expression in public schools, namely the court’s 2022 opinion in Kennedy v. Bremerton School District. That case involved a former football coach in Washington state, Joseph Kennedy, who was placed on administrative leave after ignoring repeated directives to stop leading his players in a post-game prayer on the field’s 50-yard line. Kennedy sued the district, and the Supreme Court ultimately ruled that his actions were protected by the First Amendment — a decision that critics including the ACLU characterized as an erosion of the separation of church and state.
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Stutz mentioned the case, noting that HB 744 and HB 745 broadly recognize an individual’s right to engage in such private prayer on school grounds. Sharon Patton-Griffin, a retired educator of 43 years in Great Falls, pushed back, challenging whether Kennedy’s prayer was truly private since it occurred in the center of the field while the stands were still full. She also cited an argument raised by the Bremerton School District that Kennedy’s authority over student athletes may have compelled them to pray alongside him, for fear of not being allowed to play if they didn’t.
Stutz replied that an individual’s right to private prayer in schools has been “long-recognized by the Supreme Court.” Prior to the Kennedy decision, he said, such activities were primarily governed by the “Lemon test” — a three-pronged assessment for determining when government assistance of religion violates the Establishment Clause, set by the court’s 1971 opinion in the landmark case Lemon v. Kurtzman. That test allows for such assistance provided that its primary purpose is secular, that its effects are largely secular, and that there is no “excessive entanglement” between church and state.
OPI’s next post-session forum is scheduled for Aug. 23. It will focus on changes resulting from House Bill 393, a measure sponsored by Rep. Sue Vinton, R-Billings, that grants the parents of students with special needs access to state education funding to cover tutoring and other expenses outside their public schools. The fourth event, slated for Sept. 30, will discuss a pair of parental rights bills carried by Rep. Kerri Seekins-Crowe, R-Billings, and Sen. Theresa Manzella, R-Hamilton.
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