HELENA (Daily Montanan) – The Montana Board of Regents will meet Wednesday to take up a resolution to direct the Commissioner of Higher Education to file a lawsuit over House Bill 102, which allows guns on campus and seeks to limit the Board’s authority to oversee the Montana University System.
The resolution under consideration would direct “the Commissioner of Higher Education to request, on behalf of the Board, judicial review of House Bill 102 to determine whether the law improperly encroaches upon the constitutional role and autonomy of the Board. While the Board respects the role of the legislature, judicial review is appropriate to ensure that the constitutional roles of each entity are being properly exercised.”
Anthony Johnstone, professor at the University of Montana Alexander Blewett III School of Law, said in layman’s terms, the resolution means the board is deciding whether to file a lawsuit.
“Judicial review is just a polite way of saying challenging the law in court,” Johnstone said.
The resolution points to Article X Section 9 of the Montana Constitution, which states 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 and shall supervise and coordinate other public educational institutions assigned by law.”
A legal review conducted by legislative lawyers during the Montana Legislature had pointed out the same potential Constitutional conflict.
The Regents will meet 8 a.m. Wednesday and take public comment, and this resolution is the only item on the agenda.
The resolution under consideration notes the Montana Supreme Court has “framed the Board of Regent’s authority broadly as the competent body to set priorities and adopt policies for the MUS and as the body with a constitutional duty to ensure the health and stability of the MUS.”
Since the bill was signed into law by Republican Gov. Greg Gianforte, many members of the public along with faculty, staff and students have urged Regents to stand up for their Constitutional authority and take the Montana Legislature to court.
Last week, chair of the Montana State University faculty senate Michael Brody said if the Board wouldn’t take the matter to court, faculty were in discussion about how to challenge the law, which was sponsored by Rep. Seth Berglee, R-Joliet.
The bill offers exceptions to the limits it places on the Board’s authority, but it generally states the regents “are prohibited from enforcing or coercing compliance with any rule or regulation that diminishes or restricts the rights of the people to keep or bear arms as reserved to them in Article II of the Montana constitution … ” An exception, for instance, is the bill states Regents may restrict firearms at an event where the campus has authorized alcohol to be served or at athletic events with armed security.
If the Regents go to court, the Montana University System risks losing a $1 million implementation appropriation, money some described as a “bribe” attempt by lawmakers. An overview of the system budget for the 2021 fiscal year shows state appropriations for educational units at $206 million.
House Bill 102 moved quickly through the 2021 Legislature and was signed by Feb. 18, not even halfway through the session. In the budget bill adopted later in the session, lawmakers provided the implementation dollars under condition.
“Implementation of HB 102 is restricted to the provision of full implementation of open and concealed carry of firearms on the Montana University System campuses, including but not limited to firearms training, metal detectors for events, gun safes for campus resident housing, or awareness campaigns,” reads narrative of the budget bill in relation to the $1 million. “If the Montana University System files a lawsuit contesting the legality of HB 102, Implementation of HB 102 is void.”
The Board of Regents has been expected to discuss a policy for how House Bill 102 will work on the ground at its upcoming meeting next week, but an agenda has not yet been posted. The law takes effect for campuses June 1.