Committee hears bill to amend Constitution to address Board of Regents’ authority
By Keila Szpaller,2023-03-14
First day of classes at Montana State University in Bozeman. (Provided by MSU for the Daily Montanan)
Montana State University students said the Bozeman campus has been trampling on their constitutional rights, and they want the legislature to have more authority over public higher education.
Rachael Stevenson, with the Young Americans for Liberty, said MSU has violated students’ rights of free speech and due process, and some have been threatened and fear retribution for their views.
“Passing HB 517 would ensure that students’ constitutional rights can’t be ignored just because a small group of unfit, unelected officials don’t like them,” Stevenson said, referring to the Montana Board of Regents.
But many years ago, the legislature did try to decide curriculum, determine class content, and fire faculty and administrators, said Erik Burke, an opponent of House Bill 517. So Montanans opted to put the Board of Regents in charge of public higher education — without meddling by the legislature.
In 1972, delegates to the Constitutional Convention put the Board of Regents one step beyond partisan politics and “unnecessary intrusion,” said Burke, with the Montana Federation of Public Employees.
The governor appoints them, the Senate confirms them, and they have full authority over the campuses, according to the Montana Constitution.
“House Bill 517 would reinsert politics and politicization into the operation and management of Montana universities and colleges. This step is unnecessary and unwise,” Burke said.
Monday, the House Judiciary Committee heard House Bill 517, sponsored by Rep. Mike Hopkins, R-Missoula. If passed by two-thirds of the legislature, it would ask voters to amend the Montana Constitution to give legislators some authority over the Board of Regents.
Proponents argued the “apathetic” Board of Regents wasn’t doing enough to protect students’ constitutional rights or keep them safe, and the legislature should step in. Many students from MSU said the campus was not welcoming to conservative viewpoints.
But opponents said campuses have processes in place to address the concerns students raised, and sticking politics into public higher education didn’t work out before — as evidenced by the current language in the constitution.
The Montana Constitution says the following about the regents:
“The government and control of the Montana university system is vested in a board of regents of higher education which shall have full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system.”
The bill would add the following language, in part:
“The legislature may enact laws requiring the board of regents of higher education and units of the Montana university system to adopt and maintain policies and practices that protect the rights and associated civil liberties provided in the Montana constitution and those provided in the United States constitution.”
The League of Women Voters, Associated Students of the University of Montana, Big Sky 55+ and Office of the Commissioner of Higher Education testified against the bill.
Americans for Prosperity, Young Americans for Liberty, and FIRE, the Foundation for Individual Rights and Expression, testified in favor of it.
Speaking in favor of the bill, several MSU students said someone threatened to “blow our brains out” while they were working an information table on campus, and they wanted to feel safe. Dylan O’Brien said he left Washington state for Montana in part because the Treasure State protects Second Amendment rights.
However, last session, a bill passed that made it easier to carry concealed firearms without a permit in most places, but the Board of Regents successfully challenged the portion of House Bill 102 that dealt with public campuses.
So none of the students who were being threatened could have legally had a gun, O’Brien said.
“The ability to defend oneself has been robbed by a small, unelected group of people that have no accountability to the common people Montana,” O’Brien said.
Rep. Tom France, D-Missoula, wanted to know if the person who made the threats was connected to the campus or not. Kevin McRae, with the Commissioner’s Office, said he hadn’t heard of the incident, but students can report such threats to authorities.
Ethan Hanley, representing ASUM, said he found the story horrifying, and he said death threats need to be addressed. However, Hanley also said the constitution does protect the rights of students, and the bill was unnecessary.
“We’re just beginning to strip power and authority away from the Board of Regents,” Hanley said, opposing the bill.
At the meeting, proponents and opponents split on whether Montanans had an appetite for changing the constitution. Henry Kriegel, with Americans for Prosperity, pointed to a poll conducted by a conservative firm that he said suggests voters would support change.
Participants were asked if they would vote for an amendment that said the “legislature may enact laws requiring the board of regents … to adopt and maintain policies that protect the constitutional rights of the public, students and faculty at public colleges and universities.”
In response, 71% said yes, according to the results from Public Opinion Strategies, with a +/- 4.38% margin of error.
Kriegel also characterized the power regents hold as an error.
“The courts have decided that the Montana Constitution gives exclusive authority to the Board of Regents to define constitutional rights on Montana’s public campuses. This is flat out wrong, and this amendment fixes that specific problem and mistake,” he said.
But when Montanans considered a similar constitutional amendment in 1996, they opposed it, said Evan Barrett, with Friends of the Constitution. The constitutional historian said some 63% voted against it, and just 37% voted for it.
Speaking against the bill, Barrett said he was proud to see young people from the Montana University System speak in favor of their rights. However, he disagreed the bill was a solution to their problems.
For one thing, he said members of the Board of Regents take the same oath of office legislators take, and they are obligated in their decisions to make sure abuses of constitutional rights don’t take place on campuses.
But if Montanans amend that section of the constitution, they would politicize higher education and allow politicians to bring ideology to campuses, he said.
“Virtually anything that is a grievance could be brought to the legislature with intense political pressure to have it enacted,” Barrett said.
In questions, Rep. Braxton Mitchell, R-Columbia Falls, quizzed McRae, deputy commissioner of higher education, if he opposed the bill because he would “lose your power you have over students.”
McRae said his interest wasn’t in maintaining power over students but in maintaining quality higher education in Montana.
In 1972, he said delegates were concerned about “Montana’s well-documented reputation and history for one of the most politically controversial, poorest quality public higher education systems” in the U.S., he said, pointing to transcripts of the Constitutional Convention.
As written, McRae said the amendment could subject campuses to, for instance, a ban on teaching science on extractive resource industries if a majority of legislators thought doing so violated the right to a clean and healthful environment.
Since the Montana Constitution put authority in the hands of the regents, however, public higher education has proven its quality, he said. McRae said he believes Montana is one of only two states in the U.S. with two public universities that are ranked top-tier research institutions – the University of Montana and MSU.
“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 educational governing board, rather than to the fluctuating politics of the legislative process,” McRae said.
The committee did not take immediate action on the proposal.
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