Against the advice of legal counsel — but under the bullish urging of Lt. Gov. Kristen Juras — the Montana Board of Public Education amended its agenda earlier this month to declare that one of its advisory councils acted without authority when it included “equity” as part of the educator code of ethics.
The split decision by the Board of Public Education to assert control over the code of ethics upends 32 years of precedent, Chairwoman Tammy Lacey said at the meeting. Prior to the vote, Lacey also cautioned the Board to heed the advice of counsel and allow adequate public notice for the agenda change.
“Your advice to the board would be to not take action at this board meeting because it has not been properly noticed to the public. Is that correct?” Lacey said.
“That’s correct,” said lawyer Katherine Orr, on contract to the Board through Agency Legal Services through the Department of Justice. Orr noted action by the Board would be prohibited by law and could be invalidated given the agenda item had been noticed only as an informational item: “I think it’s a very dangerous path to take.”
Since taking office, Republican Gov. Greg Gianforte and his administration have taken an active role in public education, breaking with tradition to replace Democrat and former Gov. Steve Bullock’s board appointments in advance of Senate confirmation votes; pushing to increase teacher pay; and advocating for controversial “school choice” legislation.
At the Board of Public Ed meeting on March 10, the chairwoman noted the board recognized in 1990 one of its advisory councils, the Certification Standards and Practices Advisory Council, CSPAC, as the appropriate body to interpret and revise the ethics code for professional educators — but Juras said history wasn’t a justification given state statute and CSPAC’s legislative authority.
“Thirty-two years of practice of wrong does not make a right, Chairman Lacey,” Juras said. “Even if past Boards have deflected their responsibility in this area and asked CSPAC to do it, that does not make it right. And we are asking this board to take action and address this issue.”
On a 4-3 vote, with Gianforte appointees in favor, the Board of Public Education amended its agenda to take action on the same day on the item that had been listed as informational. The Board also found CSPAC didn’t have the authority to make the revision it had made to the code of ethics and directed the council to present revisions to the Board instead.
Board member Mary Heller of Havre said the code of ethics had the force of policy, contrary to the chairwoman’s characterization it was an aspirational guide, and it should be treated as such. She also said she believed inserting “equity” into the code of ethics would open up a Pandora’s box.
“The idea of inserting that word equity is a dangerous path,” Heller said.
The Professional Educators of Montana Code of Ethics outlines principles that guide the behavior of those in the field. The code calls for educators to maintain professional conduct, protect the human rights of students and colleagues, and encourage lifelong learning, among other ideals.
In February, the Certification Standards and Practices Advisory Council adopted a revised code of ethics to include “equity” as a value that’s part of the ethical educator’s commitment to community, but the same day, Gov. Gianforte blasted the decision. In a news release, Gianforte said Montana schools should promote “equality” instead of equity.
“CSPAC’s decision … puts an extreme political agenda ahead of Montana students,” said Gianforte in the statement on Feb. 9. “As we’ve seen across the country, promoting equity in education, or the idea that all students end up in the same place with equal results, jeopardizes students’ educational opportunities.”
The governor also said the council does not have the authority to set policy: “I call on the Montana Board of Public Education to right this politically motivated wrong and put Montana students first.”
At the March meeting, Lacey said the code was a set of ideals, not policies. She also said the board typically sees items as informational at first so it has the ability to gather relevant information before consideration, and then at a subsequent meeting, it takes action. She said some members of the public who may have opted to offer comment had they seen the item was up for action may have chosen to attend other committee meetings instead.
Orr, the lawyer, said the action item wasn’t noticed to the public so a board decision the same day could be invalidated. She also said MCA 2-3-103 on public participation notes that prior to final action, agencies “shall develop procedures for permitting and encouraging the public to participate in agency decisions that are of significant interest to the public.”
Said Orr: “I assume this is of significant interest to the public.”
Board members and Gianforte appointments Heller, Susie Hedalen, Jane Lee Hamman, and Renee Rasmussen voted in favor of the motion suggested by the Governor’s Office. Hedalen made the initial motion to request the agenda be amended so the Board could take action, and Juras defended action given the agenda packet included the item. Chair Lacey and members Madalyn Quinlan and Anne Keith opposed the motions.
In her comments and a corresponding memo, Juras noted the Montana Legislature clearly intended CSPAC to be advisory in nature, as spelled out in MCA 20-4-133. In part, the code states the Council “shall study and make recommendations” to the Board of Public Education in areas including “feasibility of establishing standards of professional practices and ethical conduct.”
The code also states the Board of Public Education shall consider recommendations and reports of the council and “approve, disapprove or modify each recommendation of the council by majority vote of the Board.”
In a phone call Tuesday, Board of Public Education Executive Director McCall Flynn noted the February vote by CSPAC to replace in the ethics code the phrase “understands and respects diversity” with the phrase “demonstrates an understanding of educational equity and inclusion and respects human diversity” was unanimous.
Flynn said the Board’s attorney is working on a legal opinion to address the question of authority that arose over revisions to the code of ethics, an issue most recently discussed and settled in 2011. She said the opinion will be available prior to any joint CSPAC and Board of Public Education meeting in July.
Until then, a note added to the Professional Educators of Montana Code of Ethics online states the following: “Per the Board of Public Education action on March 10, 2022, the language in the Professional Educators of Montana Code of Ethics, adopted by the Certification Standards and Practices Advisory Council on February 9, 2022, has no effect unless and until the revisions are presented to and approved by the Board of Public Education.”
At the meeting, Sharyl Allen, deputy superintendent at the Montana Office of Public Instruction, said she wondered if any code of ethics would be in place for educators at all if the historical practice is that CSPAC has adopted and published it: “I just don’t know the answer to that question.”