House committee passes campus ‘freedom of association’ bill

GOP lawmaker says religious groups have the right to exclude LGBTQ students

By: - February 17, 2021 3:46 pm

Rep. Barry Usher, R-Billings, speaks during the House Judiciary Committee meeting on February 17. (MPAN)

A House panel voted to approve legislation Wednesday that would prevent public university administrations and student governments from giving disparate treatment to student groups based on a group’s ideology, goals or bylaws, one of multiple bills moving through the Legislature this session addressing First Amendment rights on college campuses.

The House Judiciary Committee passed the bill, HB349, on a party-line 12-7 vote, sending it for consideration in front of the full House.

The committee’s action Wednesday followed a debate on whether providing equal protection to all campus groups could result in the recognition of a student group with a discriminatory membership policy.

“This bill is centered around the notion of free association as well as speech. That is something that all of us would support,” said Rep. Kathy Kelker, D-Billings. “The only problem I have with this bill is that there is a desire … to have clubs on the university campuses that have exclusive membership. That means they’re not open to anyone who would like to join.”

Rep. Jane Gillette, R-Bozeman, countered that she was in a student group of women scientists while she was in college, and that it would be strange to expect the group to allow a male student to join or lead.

But Rep. Ed Stafman, D-Bozeman, said it’s fine and good to have a group of women science students — if a group starts excluding based on gender or sexual identity, that’s a larger issue.

Rep. Barry Usher, who chairs the House Judiciary Committee and voted for the bill, said it’s his belief that a student group has the right to exclude based on those factors.

“If it’s a religious group, and that religious group does not believe in LGBT, it is my belief that they don’t have to let them in that organization,” Usher said. “That’s a religious, constitutional right vs. LGBT. I know we bring that up all the time, to me, it’s an argument that falls flat on its face. Religious beliefs come much before most other constitutional rights.”

The proposal, sponsored by Rep. Mike Hopkins, R-Missoula, would prohibit student governments from limiting the access of certain student organizations to funding and full recognition by the university, even if that organization require a leader or member to hold certain beliefs or follow certain standards of conduct.

In a committee hearing on Monday, Hopkins said the bill was necessary in order to protect the First Amendment rights of student groups that might hold controversial views on issues like abortion. The bill’s supporters included conservative legal groups and Christian student organizations at Montana’s public universities.

HB349 is one of multiple related bills Hopkins is carrying this year that broadly operate under the assumption that conservative students and viewpoints receive unequal treatment at the state’s public universities. His HB218, which passed unanimously out of the House Judiciary Committee earlier in the month, would fine universities up to $75,000 if they violate students’ First Amendment rights.

A legal note attached to HB349, pointed out several legal concerns with the bill, including that it prescribed punishment for the university and also dictated how funds must be spent, both of which possibly run afoul of the state’s constitution and long-standing case law. Legal notes are attorney-written notes that address the potential legal pitfalls of any potential legislation. They are not binding on the lawmakers, but are meant to avoid costly lawsuits in the future.

The sole registered opponent to HB349 was Jack Rinck, a lobbyist for the Associated Students of the University of Montana, who argued it would be unfair for student governments to allocate equal amounts of money to a group that would accept any student and one that was exclusive. Students are free to organize independent, exclusive groups if they so choose, they just would not have access to the same university recognition, Rinck said.

If the bill passed, it would “simply allow individual student groups to be exclusive to whom they wish via membership or leadership,” he said, something that could lead to more “sinister consequences” down the road.

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Arren Kimbel-Sannit
Arren Kimbel-Sannit

Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.