There are many moral and pragmatic reasons to feel despair over the recent bill by the Montana legislature, signed by the governor, to extend open carry of firearms to every nook and cranny of society. To an old liberal like me, it seems like an ideological, adolescent tantrum on the same moral level as refusal to wear a face mask during a pandemic.
But what disturbs me the most is the cavalier manner in which an unknowing legislative majority and a new governor violated Article X, Section 9 of the Montana Constitution, which gives to the Board of Regents exclusive authority to manage and control the university system.
The Legislature challenged this provision once before by writing a variety of management directives into the appropriations bill. As the first commissioner of higher education, I advised the regents that they had to challenge this in court or be seen as voluntarily ceding their constitutional authority. The result was the 1975 case, Regents v Judge (the Legislature had adjourned, so we had to sue to enjoin the governor from enforcing the provisions). The state Supreme Court supported the regents’ claim.
I am certain the current commissioner and regents are mulling over whether to mount a challenge. This puts them in an awkward position, because of the awesome power of the purse wielded by the political branches, along with the power to appoint regents. In 1975 we had a constructive, bipartisan Legislature, and higher education had good friends on both sides of the aisle. We also had a governor who would never knowingly harm any of our universities. We didn’t fear retribution for having to do the right thing.
We did experience an attempted end run, however, after the 1975 case. In the next session, the joint subcommittee on higher education appropriations, knowing they could not pass constitutional muster if they wrote directives into the appropriations act, decided to send the regents “letters of intent,” or indirect directives. These did not have the force of law. They were not acted on – and probably not even known about – by the Legislature as a whole. I believe we finessed the problem by offering to discuss any such matter with which we disagreed, but, more importantly, to agree whenever we could, and in doing so attach a disclaimer to the effect that “By agreeing to this suggestion, the Board of Regents does not mean to sacrifice any of its authority under Article X, Section 9 of the Montana Constitution." This worked very well in the political and cultural context of the 1970s. I cannot comment on anything since that time, and clearly I do not understand the present context, having been out of the loop for the past 40 or more years. I hope, though, that Montana can keep partisan politics out of education at all levels.
Dr. Lawrence K. Pettit was Montana’s first Commissioner of Higher Education, 1973-79, after which he was a university president in Texas, Illinois and Pennsylvania. He is retired and lives in Helena.