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A Gallatin County judge denied part of the state of Montana’s motion to dismiss a lawsuit challenging four bills passed in the 2021 Legislature.

The lawsuit, filed in June in the district court by a coalition of students, staff and higher education leaders, argued that four laws passed by the Montana Legislature infringed on the constitutional authority of the Board of Regents to set policy for the Montana University System.

The lawsuit names Gov. Greg Gianforte, Montana Attorney General Austin Knudsen and the state of Montana as defendants.

The defendants filed a motion to dismiss, saying the plaintiffs didn’t have enough factual detail of the alleged injuries in the complaint. They also claimed the plaintiffs didn’t have legal standing to file the lawsuit.

District Court Judge Rienne McElyea during a hearing Wednesday afternoon denied the claim that there weren’t enough facts to file the lawsuit but has yet to rule on the motion to dismiss based on a lack of standing, asking both sides to submit proposed orders within four weeks before she makes a decision.

The suit brought by the coalition accuses the Legislature of overreach in passing House bills 102, 112, and 349 and Senate Bill 319. The lawsuit says the Board of Regents, as the governing body of the university system, already has policies that address the topics covered in the laws passed this year.

HB 112 bans transgender athletes from participating in women’s sports. HB 349 creates new guidelines for anti-harassment and free speech policies on campus. SB 319 restricts organizations from registering students to vote in dorms and dining facilities.

Earlier this month, a district court judge, in a separate case filed by the Board of Regents in regard to HB 102, struck down the provision that would allow firearms on college campuses. Attorney General Austin Knudsen filed an appeal.

McElyea denied the motion to dismiss related to failure to have enough facts, saying the plaintiffs had a sufficient claim in their complaint considering another judge, Michael McMahon in Lewis and Clark County District Court, had ruled in favor of the Board of Regents’ lawsuit against HB 102.

In the other part of the motion to dismiss, defendants argued the plaintiffs did not have legal standing to file, or in other words were not the right party to bring the lawsuit.

The plaintiffs include ex-regents, a previous commissioner of higher education, Montana State University’s Faculty Senate, the Montana Federation of Public Employees, university student groups, individual university faculty members, individual students and a delegate in the 1972 Montana Constitutional Convention.

“Only the BOR suffers an injury from not being able to exercise its own power. Plaintiffs here are trying to stand in for a government entity that is perfectly capable of protecting its own interest,” said Kathleen Smithgall, an attorney in the Attorney General’s office representing the defendants.

Solicitor General David Dewhirst also represented the defendants.

Smithgall said BOR already challenged HB 102 and they could have challenged the other laws but have not done so. The plaintiffs also did not allege injuries with enough facts that are traceable to the claims, she said.

“Plaintiffs are just the wrong party to bring these claims …. The Board of Regents is the proper party to protect their own power,” Smithgall said.

Attorneys representing the plaintiffs, Raph Graybill of Great Falls and Jeff Tierney of Bozeman’s Goetz Law Firm, argued the plaintiffs experienced direct harm due to the new laws.

“The students and faculty have a direct interest and a highly personal stake in who is legislating campus affairs and how that’s done,” Tierney said, adding that they’ve traditionally had a voice and representation to the BOR. “… If the Legislature instead has the prerogative to completely supplant that process, they’re stripped of their voices.”

When asked by McElyea why the BOR wasn’t involved in the case, Tierney said he couldn’t say but it could be for a variety of reasons, including political pressure or believing students or faculty are a better plaintiff.

Graybill said the framers of the 1972 Montanan Constitution designed a higher education system “to avoid the kind of intrusions these bills represent, the political tinkering by the Legislature that is anathema to academic freedom and a flourishing system of higher education.”

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Liz Weber can be reached at or 582-2633.

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