Rep. Barry Usher

Montana is currently experiencing a crisis in judicial overreach accountability.

Last year, Montana state legislators passed multiple laws to protect Montana students, both those in grade school and in college. The laws were designed to ensure students can speak freely on campus, participate in the exchange of ideas, and experience the full benefits of Title IX’s equal protection for female students.

However, instead of enforcing these new laws and protecting our students’ constitutional rights, the Montana Federation of Public Employees (MFPE) sued the state. Their argument was that the legislature does not have the power to enact new policies on college campuses.

Rather, Montana’s Board of Regents—a group of unelected bureaucrats—has the ultimate authority to dictate what constitutional rights Montana’s students are allowed to fully enjoy.

In other words, state universities that receive millions in taxpayer funding every year are should not be subject to laws passed by the elected representatives of the taxpayers who contribute those funds.

Unfortunately, after MFPE’s case was denied being heard by the Montana Supreme Court, a more favorable Gallatin County District Court Judge agreed and permanently enjoined multiple bills that merely protected fundamental constitutional rights of Montana students, declaring that they were attempting to “inject legislative policy judgments” onto Montana’s college campus.

One of the laws at issue was merely preventing discrimination against student organizations based on their religious, political, or ideological views and requiring the adoption of an anti-harassment policy that mirrors current U.S. Supreme Court precedent. According to the District Court, ensuring Montana colleges maintain these proper constitutional protections for its students is beyond the purview of the people of Montana and their elected representatives.

While hopeful that this ruling gets overturned on appeal, it nonetheless has highlighted a fundamental problem in the Montana system that has allowed judges and institutions (like the Board of Regents) to escape accountability from the people. The U.S. Supreme Court has held that students “do not shed their constitutional rights to speech or expression at the schoolhouse gate.” These rights must be protected regardless of whether the Board of Regents approves.

The court’s decision in this case provides acute insight into why Montana is in desperate need of better judicial oversight and not judicial overreach imposing policies as if they are the first and only branch in government.

As we see too big to fail government bureaucracies evading accountability, while holding out their hand to the taxpayers for funding, it is clear the system is broken.  Such system circumventing accountability is undemocratic and unfair to both the taxpayers footing the bill and to the students whose rights are being trampled.

To remedy this problem, Montana’s judiciary must step away from the temptation to legislate from the bench and step back into its proper role as impartial adjudicators.