A pair of bills being considered at the Montana legislature would criminalize sex between educators and students, even if the student is old enough to legally consent.
Students would not be able to consent to sexual acts with any adult in a supervisory role in a school, from teachers to janitors to volunteers, under the proposed changes.
But for some education advocates, the changes don't go far enough.
Bills from Rep. Shane Morigeau, a Missoula Democrat, and Sen. Keith Regier, a Kalispell Republican, would amend state law governing consent, an acknowledgement that the proposals are built from an understanding that teachers and students have an inherently unequal power dynamic.
Morigeau's proposal, HB 173, was heard by the House Judiciary Committee on Jan. 18. Regier's bill, SB 132, is backed by Superintendent of Public Instruction Elsie Arntzen and was heard Monday at the Senate Education and Cultural Resources Committee.
“Students cannot meaningfully consent to relationships with school officials,” Arntzen said.
The Montana Public Education Center, an organization with ties to school boards, administrators, the teachers' union and other advocacy groups, expressed "reluctant opposition."
“We support the intent of the bill,” said Debra Silk, the group's lobbyist. “We don’t believe that the bill goes far enough.”
Reiger's bill creates an exception for married couples and for relationships that predate school employment, a provision Silk opposed.
Morigeau's is more blanketed; some legislators raised hypothetical situations like a 19-year-old volunteer coach dating a 17-year-old student dating back to when they were both in high school.
“When you decide you’re going to work on school grounds and with students, you need to make the decision that you're not going to have sexual relationships (with students)," said Dan Rice, an attorney backing Morigeau's bill. Rice and other lawyers represent dozens of alleged victims of a former Miles City athletic trainer in a civil lawsuit claiming the school failed to protect students from systematic sexual abuse.
Silk also advocated for a one-year "cooling off" period where students would still be off-limits for a year after graduating or dropping out or within a year of a teacher resigning or being fired.
“It may be that they are grooming or crossing boundaries with a student,” she said. “I think that’s one of the loopholes that is in the current language.”
Regier recalled a scenario he said occurred while he attended high school: the school hired seniors to drive school buses, and as school employees they would have been prohibited from having sexual relationship with other students.
The state Department of Justice generally supported the bill.
“I believe that the teacher-student relationship is one of those where it is an institutional imbalance of power,” said Assistant Attorney General Ole Olson.
In Montana, the Office of Public Instruction is tasked with investigating conduct that may cause a teacher or administrator to lose his or her license, including "immoral conduct." The Board of Public Education, a board of governor appointees, hears cases and rules on them.
But if students are older than Montana's 16-year-old age of consent, there's no criminal teeth in the rulings.
It's unclear how many such cases there are, but they appear to be rare.
In November 2018, a Ronan middle school teacher had his license revoked after the Office of Public Instruction and Board of Public Education concluded he had an inappropriate sexual relationship with an 18-year-old high school student.
During the past five years, only one other teacher had his or her license revoked, in that case for falsifying documents used to obtain licensure. There has been one license suspension for immoral conduct, and five license surrenders during that period. Most of those cases have been during the past two years, according to the Office of Public Instruction.