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Gallatin County judge denies motion to dismiss higher ed lawsuit – Daily Montanan

['Keila Szpaller', 'More From Author', '- March']

Date: 2022-03-09 00:00:00

Students, a faculty group and other plaintiffs have shown a real — and not just hypothetical — threat of harm from four laws passed by the 2021 Montana Legislature, so a judge won’t toss the case.

“Plaintiffs challenge the State Legislature’s constitutional authority to legislate university affairs and intra-campus activities,” said the March 4 order from Gallatin County District Court.

The order from Judge Rienne McElyea said the plaintiffs have shown they are or may be injured and that they have enough of a “personal stake in the outcome” for the case to move ahead. As such, the judge denied the motion to dismiss by the State of Montana, defendants Gov. Greg Gianforte and Attorney General Austin Knudsen.

The judge also found that if the legislation interferes with the “constitutionally granted independence and authority” of the Board of Regents, it also disrupts the ability of groups that deal directly with the Regents in serving their members. And “the laws at issue are aimed squarely at regulating the Plaintiffs’ conduct.”

The lawsuit was filed by a group of organizations and individuals, including the Montana Federation of Public Employees, Montana University Faculty Association Representatives, Faculty Senate of Montana State University, the Montana Public Interest Research Group, Associated Students of MSU, and others.

In the order, the judge ticks off the possible injuries from each of the contested bills: House Bills 349, 112, 102 and Senate Bill 319. A Lewis and Clark District Court judge found the sections of HB102 — opening up permitless concealed carry in Montana — that attempt to restrict the authority of the Regents to be unconstitutional. The case has been appealed.

When it comes to HB349, the court said plaintiffs allege that the bill will prevent campuses from responding to discriminatory or harassing speech even though it purports to be an anti-discrimination measure, and that it undercuts protections for students by Regents. The judge agreed the threats are credible and allegations sufficient for the case to move ahead.

“Because Plaintiffs allege that HB349 may have the effect of excusing discriminatory conduct, or depriving students directly of protections of the system developed and implemented by the Regents so far, this is not an abstract hypothetical or an unlikely future contingency,” the order said.

The court found the same for HB112: “The forecasted injury, i.e., exclusion of transgender athletes, is not an abstract or remote contingency. It is the expressly stated purpose and function of the challenged legislation.”

The order also found that one of the plaintiffs, MontPIRG, has credibly alleged SB319 unduly restricts the ability of student organizations to register students to vote in dorms and dining halls and prohibits their funding through an opt-out fee: “MontPIRG has a stake in the constitutionality of SB319.”

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