Lawsuits were filed. Legal documentation has been submitted. Now, all eyes turn to the district court in Helena for a legal battle that may be a step closer to determining a winner in the tug-of-war between the Board of Regents and the Montana Legislature over control of the state’s universities.
The flashpoint: House Bill 102, which expanded Montanans’ legal right to carry firearms, open or concealed, after Republican Gov. Greg Gianforte signed it into law in February 2021. The law also seeks to allow students to carry guns on college campuses, making it one of the least restrictive gun laws in the nation.
In May, the Board of Regents, Montana University System’s ruling authority, sued the state, alleging HB 102 was an unconstitutional breach of power and that the Legislature overstepped its bounds.
On May 28, three days before the law was set to be implemented by universities, a district court temporarily stopped the campus carry portion of the bill from going into effect until a decision could be made on the case. Soon, both sides will meet in Helena to present their arguments.
But the court battle has brought up a larger constitutional question: Who controls Montana’s universities?
The question is one legal experts say could take years to decide in the state’s courts. And it could set the precedent for more than just guns on campus. If the court decides the Legislature can regulate guns at public universities, that means lawmakers have a foothold for more control over university policy issues.
The precedent this lawsuit is exploring is not one of gun control, but one of regent authority, said Ali Bovingdon, chief legal counsel for the Commissioner of Higher Education. The commissioner’s office oversees the entire Montana University System. Bovingdon is an attorney for the Board of Regents in the suit.
“We believe that this is a fairly narrow legal question as to whether or not the Board of Regents or the Legislature is the body that has the constitutional authority to make these sorts of decisions,” Bovingdon said. “The Attorney General, on behalf of the state, is arguing that this is actually a proper function of the legislative role and that it’s an exercise of their police power.”
“It’s a narrow legal question about just really who has the authority,” she continued. “And we believe, based on the language of the constitution and the way Montana courts have interpreted that clause — Article X, Section 9 — that this is a proper function of the board.”
The Board of Regents has the authority under the clause Bovingdon referenced to maintain control over university campuses. The Montana Code Annotated states:
“The government and control of the Montana university system is vested in a board of regents of higher education which shall have full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system and shall supervise and coordinate other public educational institutions assigned by law.”
But the state, led by Montana Attorney General Austin Knudsen, is arguing the regents don’t have full control over the universities under this provision, especially as appointed officials not elected to their positions.
“The constitution says the Board has full authority ‘to supervise, coordinate, manage and control the university system ... This does not mean it has the power over any and all matters that ‘affect’ the university system,” one of the state’s briefs asserts.
“The Board provides no limiting principle to its authority. The Board simply repeats that it has ‘full authority,’ which — if taken literally —would lead to absurd results. The Board’s argument … would elevate the Board to a fourth branch of government,” the brief states.
Both the state and the Board of Regents filed petitions for summary judgment, which asks for the case to proceed at the district level without oral arguments. If the judge approves those requests, he will decide the case based on the lawyers’ briefs alone.
If Judge Michael McMahon doesn’t approve summary judgment, Bovingdon said oral arguments, where lawyers from each side present their case to the judge, will likely begin at the end of this year or in early 2022.
Whatever decision the court makes will likely be appealed to the Montana Supreme Court, Bovingdon said. The court usually hears cases in six to 12 months, meaning a final decision could be made by spring 2023.
“It’s entirely likely that we could go through the next year without having a final decision, and just kind of being in this status quo space where the law is enjoined,” Bovingdon said.
Anthony Johnstone, a constitutional law professor at the University of Montana, said the case is interesting in that it’s one of a small handful of its kind in the state’s legal history.
The primary piece of precedent both sides have to work with is a 1975 case (decided just three years after Montana ratified its new constitution) entitled “Board of Regents v. Judge,” Johnstone said. The case examines the power the regents have in controlling university budgets, ultimately “striking down, as unconstitutional violation of regents’ authority, legislative attempts to intrude into budgetary decisions of university.”
The 1975 opinion, delivered by Justice Wesley Castles, found House Bill 271, which would have appropriated funds to the university system, and Senate Bill 401, which would have mandated that a legislative finance committee approve university budget amendments, to be unconstitutional. The court ruled both bills infringed upon the constitutional authority granted to the regents.
“Inherent in the constitutional provision granting the Regents their power is the realization that the Board of Regents is the competent body for determining priorities in higher education,” Castles wrote.
The case slightly strengthened the Board of Regents’ authority, Johnstone said, though not everyone agrees.
The state has argued that “Judge” is a narrow decision relating only to universities’ finance management, stating “Judge explained that there is ‘not always a clear distinction between the Legislature’s and Board’s respective constitutional authorities ... In other words, the Board’s power is not absolute.”
The case now facing Judge McMahon and, potentially, the Montana Supreme Court, could set a new precedent for the Board of Regents’ power.
In terms of possible decisions, Johnstone said he sees three outcomes.
“Two big ways on either end, and one smaller way in the middle,” he said.
First, the district court rules in the regents’ favor, and the state appeals to the Supreme Court. Second, the district court rules in the state’s favor, and the Regents appeal. In either of these outcomes, the Montana Supreme Court would make a final ruling, either for the regents or the state — and that would be that.
A third, potentially less satisfying and certainly less definitive option, Johnstone said, is the court rules that some sections of HB 102 specifically discriminate against the Montana University System — that it’s actually not about generally expanding the scope of permitted firearm possession in the state. And even if the Legislature could extend more general laws to campuses, it couldn’t treat universities differently than other public institutions.
Less is decided, because there’s no overarching precedent set — other than the Legislature can’t specifically target universities with its gun policies.
“Instead of a big ruling in favor of either side, [it] would be a small ruling that simply says ‘Whatever the answers might be to those other big questions, the law before us here discriminates against the university system relative to other similarly situated organizations,’” Johsntone said.
For either side, if one of those two bigger decisions is made, it could mean more than just the regulation of guns on campus.
“Saying that the Legislature does have power to control firearms policies on campus … could be read to authorize the Legislature to control other policies on campuses,” Johstone said. “And that would set a precedent that would probably lead to additional efforts by the Legislature to make campus policy outside the Board of Regents.”
On the other hand, “The other side would be a big win for the Board of Regents saying that the Legislature does not have the power to establish firearms policy on campus,” he continued.
But if the Board of Regents wins, then an unelected board is given more power over MUS. That’s also potentially problematic, said Lee Banville, political analyst and University of Montana journalism professor.
“The thing that’s slightly worrisome about [the Board of Regents’ sweeping win] if you’re the court, is you’re investing in a non-elected board — or an appointed board — almost absolute control,” Banville said.
And in saying the Board of Regents has total control over higher education, the court would be giving it authority to set policy about, essentially, anything that doesn’t violate the U.S. Constitution, he said. And vice versa with the Legislature.
It would be surprising to see the court go very aggressively in that direction, Banville said.
But regardless of which decision the courts make, students should be paying attention to the legal battle — and others like it around the state, Banville said. As higher education continues to be politicized, these kinds of precedent-setting suits do end up affecting students.
“Schools have always been hot-button political issues,” he said. “But I think we’ve seen, whether it’s the use of Critical Race Theory in K-12 or it’s HB 102 in higher education, there’s sort of this effort to insert political views into education. And I think students should be aware that’s a thing that’s happening.”
As of Friday, Nov. 19, Judge McMahon had not taken action on the requests for summary judgment. If the case goes to oral arguments at the district level, the Helena court will likely hear arguments by the end of this year or early next year.