Montana Judge Holds that HB 122, HB 349, and SB 319 are Unconstitutional

September 19, 2022

Important Takeaways: A Gallatin County Judge determined that House Bill 349, House Bill 122, and one section of Senate Bill 319, which all passed in the 2021 Montana Legislative Session were unconstitutional.

Facts: House Bill 349 was codified as  Montana Code Annotated § 20-25-518. The bill purports to limit discipline for certain kinds of speech. This bill dictates whether student groups are entitled to the benefit of university recognition, funding, services, and support. This Bill directly violates Article X, § 9 of the Montana constitution which gives the power to supervise, coordinate, manage, and control the Montana University System to the Board of Regents.

House Bill 112, titled “Save Women’s Sports Act” was codified as Montana Code Annotated § 20-7-1305 through 1307 purports to require public schools to designate athletic teams based on biological sex, not allowing “students of the male sex” to participate in women’s sports and allows for a cause of action against a school if they violate these requirements. The Court held that the power to regulate extracurriculars was also within the power of the Board of Regents. The Court also held that House Bill 112 contradicts established Board policy stating that Montana University System athletics comply with the rules and requirements of the NCAA.

Senate Bill 319 § 2 was codified as Montana Code Annotated § 20-25-452 and would prohibit the Board of Regents from funding measures for student organizations functioning as political committees. This directly affected MontPIRG, a non-partisan public advocacy group that has operated at the University of Montana for more than forty years. The Court held that even though there was not already an existing policy regarding this issue, that does not give the legislature power to pass this bill. This section of this bill was another infringement on the Board’s constitutionally guaranteed authority.

What this means: House Bill 349, House Bill 122, and Section 2 of Senate Bill 319 violate the Montana Constitution because they directly violate the Montana Board of Regents’ power granted to them by the Montana Constitution.

What is the name of the case and where you can read it: Barrett v. State of Montana, Montana Eighteenth Judicial District Court, Gallatin County, September 14, 2022. Read it here.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, and Kevin by email or at 406-542-1300 to discuss these issues.