New campus carry law in Montana raises state constitutional questions

The Montana University Board of Regents won an injunction temporarily staying the implementation of a new state law allowing for the open and concealed carrying of guns on public college campuses that was scheduled to go into effect June 1.

The passage of HB102, which substantially restricts the regents’ ability to prohibit carrying firearms on the campuses, gave rise to a legal battle over whether the Republican-controlled Legislature overstepped its bounds and usurped the authority Montana’s constitution grants the Board of Regents to set campus policies.

The state constitution, ratified in 1972, grants the Board of Regents “full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system.”

The regents argue in a lawsuit that “in restricting BOR’s authority to supervise, coordinate, manage and control the presence and use of firearms on MUS [Montana University System] campuses in the manner the Board determines is best to ‘ensure the health and stability of MUS’ … the Legislature exercised control over the MUS and impermissibly infringed on BOR’s authority.”

Casey Lozar, chair of the Board of Regents, said the new legislation may infringe on the board’s constitutional authority.

“We’re essentially seeking clarity on the unique constitutional roles that the key stakeholders have in the state of Montana,” he said.

The Board of Regents’ current firearms policy allows individual campuses to set policies regarding the transportation and storage of firearms. The board argued that without an injunction, “40,000 MUS students will not know whether to comply with HB102 or with existing BOR Policy 1006.”

“In public comment to BOR, students, parents, campus leaders and other constituencies have expressed grave concern about safety on campuses; enrollment and retention of students; recruitment and retention of faculty, [and] suicide prevention,” their suit states.

The Montana attorney general’s office did not respond to a request for comment.

The regents are not the only ones suing over HB102.

The Montana Federation of Public Employees filed a separate lawsuit in Montana’s Supreme Court challenging the constitutionality of HB102, along with fellow plaintiffs including ex-regents, professors and students, as well as a former commissioner of higher education. Amanda Curtis, president of the union, said the groups plan to refile their challenge in district court after the Supreme Court dismissed their petition to take up the case directly, ruling that no “urgency or emergency factors exist making litigation in the trial courts and the normal appeal process inadequate.”

“We filed this lawsuit because we have always and continue to believe that Montana’s constitution means something and that this Legislature, or any body of politicians, are not all powerful and can’t just impose their will over the top of one of the best constitutions in the United States,” said Curtis. She said the MFPE counts among its membership public university faculty and staff, including university police officers.

The public employees’ union is challenging several other new laws in addition to the campus carry legislation. These include HB112, which forbids public school and university athletics teams from allowing transgender athletes to participate in women’s sports; HB349, which limits the ability of public institutions to discipline students for harassment related to their speech except in certain circumstances; and SB319, which bars groups from organizing “voter identification efforts, voter registration drives, signature collection efforts, ballot collection efforts, or voter turnout efforts for a federal, state, local, or school election inside a residence hall, dining facility, or athletic facility operated by a public postsecondary institution.” SB319 also would require that students would have to opt in to, rather than opt out of, paying any optional student fees used to support student organizations engaged in political activity.

“Although the line between the Regents’ power and the authority of the Legislature is not always clear, the challenged measures are beyond the pale. They all amount to legislative overreach into the constitutional prerogative of the Regents,” MFPE and its co-plaintiffs said in their complaint to the Supreme Court.

Anthony Johnstone, the Helen and David Mason Professor of Law at the University of Montana, said the state constitution affords the Board of Regents an uncommon amount of autonomy.

“Not all states have constitutional protections for university autonomy; when states do have constitutional protections, some are stronger and some are weaker,” he said. “Montana’s is generally framed as one of the strongest in the country.”

Johnstone said the legal arguments will likely center on the degree to which the laws at issue specifically impact university policy decisions versus the degree to which they are more general in scope.

“The principle here is you’ve got this core of university autonomy and then you’ve got all these more general laws that apply elsewhere that no one would argue universities are exempt from, like minimum wage laws,” he said.

“Unlike general laws passed to protect the public health, safety and welfare across the state, each of these laws do to some extent call out the university system,” Johnstone said. “That would distinguish it from these more general laws. At the same time, they also refer to more general constitutional rights that are enjoyed by all Montanans whether you’re in the university system or not. I think what the courts are going to be asking is how close do these laws fall to that core of university autonomy and its underlying principles of academic freedom or, on the other hand, are they just general protections of the public health, safety and welfare of the state.”

The legislature earmarked $1 million in funding for implementation of the campus carry law but made that funding conditional on the Board of Regents not filing a lawsuit to contest the constitutionality of the law.

State Representative Seth Berglee, the lead sponsor of HB102, said in a written statement that it is “unfortunate that the Board of Regents has chosen to sue to block HB 102 because they think their authority is so absolute that they can deny a student’s constitutionally-protected rights.” (The text of HB102 refers to Montanans’ constitutional right to bear arms.)

“Montanans’ constitutional rights don’t end when they step onto a college campus,” Berglee said. “The safety of students and faculty depends on responsible people being able to defend themselves and those around them. It’s disappointing that the Board of Regents is suing to protect its own power instead of working to protect student safety.”