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Mary Sheehy Moe: HB 517? Just say ‘Whoa’
No community in Montana more scrupulously attends to civil liberties than a Montana University System campus. So I was disturbed by comments last week supporting HB 517, proposing a constitutional referendum to let the legislature, not the regents, set the parameters for campus policies affecting constitutional freedoms.
Students told tales of woe ranging from getting poor grades or being ostracized for their views, to having to listen to faculty’s political rants and not being able to find faculty willing to advise their political club. More chillingly, one student claimed his life had been threatened when he was “tabling” for a conservative cause on campus. (A shouting match ensued. Police responded, characterized the incident as disorderly conduct on the part of two students, and issued a warning to both.)
Listening, I was puzzled. Every Montana campus has well-vetted processes for lodging complaints. When the issue is criminal, police take over. When the complaint involves civil liberties or even just dissatisfaction with a grade, every campus has a venue for hearing the complaint, gathering the facts, applying the appropriate policy, and rendering an impartial decision. That decision can be appealed and re-appealed, often all the way to the Board of Regents.
None of the students complaining at the hearing had availed themselves of these processes. Some didn’t even know about them. They blamed the university system for that as well.
But these were young people, new to the exercise of their civil liberties. The same cannot be said of the bill’s sponsor. Like the students, without ever bringing his concerns to the government entity responsible for responding to them — the Board of Regents — he bashed the board for operating as “an island of its own constitutional authority.”
“They’re doing a great job,” he conceded, “but they’re in no way, shape, or form equipped to be constitutional arbiters” of civil rights on our campuses. Hmmm … and the legislature is? A constantly changing group of 150 people, few of whom have backgrounds in law or academia, meeting for 90 days every other year?
What’s really going on with HB 517 is a tale as old as time: A kid doesn’t like the answer he got from Mom so he goes to Dad. Last year, Republican legislators got an answer they didn’t like from Montana’s Supreme Court when the regents challenged HB 102, a 2021 bill requiring campuses to allow firearms on campus.
College campuses are among the settings the United States Supreme Court recognized as “sensitive” enough to warrant limiting Second Amendment freedoms. After hearing from thousands of Montanans, the regents made that call. Montana’s Supreme Court unanimously held that our constitution leaves no doubt it was the regents’ call to make.
So the bill sponsor wants you to overrule the supreme courts of this state and nation, as well as a nonpartisan Board of Regents, and leave all decisions about civil liberties on campus to — surprise! — legislators. Good ole l’etat c’est moi. If HB 517 dealt only with the Second Amendment on Montana campuses, I wouldn’t be as concerned. But HB 517 wants to make the legislature the arbiter of ALL civil rights on campus. The sponsor assures us the bill won’t affect academic matters, just civil liberties, but it’s simply impossible to separate those liberties, especially those enshrined in the First Amendment, from research, teaching and learning.
On the pretext of protecting civil liberties, the legislature could prescribe which books can be assigned in classrooms and available in libraries, which instructors to criminalize for their research or advising, which students to restrict from expressing themselves and which programs to discontinue. You’ve been following this legislature. Can you doubt that they will?
The legislature has a role. The courts have a role. The regents have a role. This legislature wants to assume all of them. Absolute power corrupts absolutely.
We’ve been down this road before. Before the 1972 constitution insulated the university system from legislative shenanigans, higher education in Montana was nationally blacklisted — repeatedly! — for its abuses of the First and Fourteenth Amendments. Today, thanks in large part to the hard work of an unpaid board of public servants, it’s arguably Montana’s greatest government-created asset.
If we can keep it.