FIRE submits written testimony supporting Montana HB 349

February 16, 2021

The Montana House Judiciary Committee held a hearing yesterday for HB 349, a bill that would require public institutions of higher education in Montana to define student-on-student harassment in accordance with the Supreme Court’s ruling in Davis v. Monroe County Board of Education. HB 349 also enshrines students’ freedom of association rights in state law, allowing student organizations predicated on common beliefs to require their members and leaders to share their values and beliefs.

“Montana’s institutions of higher education have long struggled to define harassment.”

While FIRE frequently testifies in support of this kind of legislation, Montana’s House Judiciary Committee does not currently allow individuals and groups from out-of-state to testify remotely. As a result, FIRE submitted written testimony, which can be found here, in support of HB 349.

In our testimony, we pointed out that every university in Montana with a rating in FIRE’s Spotlight Database maintains unconstitutional definitions of student-on-student harassment. Indeed, Montana’s institutions of higher education have long struggled to define harassment. As we note:

Montana has been a flashpoint for problematic antiharassment policies as a result of a 2013 settlement agreement between the University of Montana and the Department of Education’s Office for Civil Rights (OCR). Pursuant to that agreement and its accompanying findings letter, which referred to the agreement as “a blueprint for colleges and universities throughout the country to protect students from sexual harassment,” the University of Montana agreed to define sexual harassment as “any unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.” This provision, which is entirely subjective, meant that any speech related to sexuality that anyone found unwelcome was actionable as harassment.

Contrary to this overly broad definition, the Supreme Court’s Davis standard sets out a carefully crafted test to determine when speech protected under the First Amendment becomes unprotected harassment, defining it as conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” In our testimony, FIRE provides several examples of this definition being used by courts to protect students from censorship (e.g. Nungesser v. Columbia Univ.; B.H. ex rel. Hawk v. Easton Area Sch. Dist) and sexual harassment (e.g. Niesen v. Iowa St. Univ.; S.K. v. N. Allegheny Sch. Dist.; T.E. v. Pine Bush Cent. Sch. Dist.). As we assert:

What these cases and many others like them demonstrate is that Davis has worked to protect students from harassment and to protect free speech rights. Montana should join Alabama, Arizona, Arkansas, Ohio, Oklahoma, and Tennessee in requiring its public institutions to use a definition of discriminatory student-on-student harassment consistent with the Davis standard.

As noted before, HB 349 would also protect student freedom of association rights. As our testimony explains:

HB 349 protects students who are dedicated to a particular cause, ensuring that they can band together, combine resources, hold meetings, craft their shared vision, and thus more effectively reach their fellow students with their message. The freedom of expressive association also includes the freedom not to associate—that is, to exclude those who don’t share the  group’s beliefs.

FIRE urges the Montana House Judiciary Committee to pass HB 349 to ensure that students are protected from both sexual harassment and censorship, and are able to associate freely in accordance with their constitutional rights.