Montana OPI wants to add a penalty for teachers who violate sex ed requirements

A teacher who fails to give parents and guardians advance notice of “human sexuality instruction” may be punished if the Montana Office of Public Instruction turns a legislative priority into a signed bill.

As proposed by OPI, educators who don’t alert parents within 48 hours of related lessons or events would be subject to a “gross neglect of duty” penalty.

OPI spokesperson Brian O’Leary said Friday the agency that oversees Montana public schools is still seeking a sponsor to carry a bill with such language.

The language OPI drafted would amend legislation from the 2021 session that requires a school to provide parents at least 48 hours notice if they are teaching “or otherwise providing information about” human sexuality.

Among other changes, OPI requests the addition of a “violation” section, which identifies administrative penalties for educators as a letter of reprimand, suspension, license revocation, or denial of teaching certificate, required by Montana law.

O’Leary said due process would be in place for the teacher; the Montana Board of Public Education would determine the actual disciplinary action through a hearing.

He said the violation section focuses on license discipline and is needed because “a penalty mirrors the responsibility in the bill.”

“Superintendent (Elsie Arntzen) has spoken to many parents and school districts around the state as well as the School Board Association on the implementation of the current language,” O’Leary said in an email. “She also spoke with the sponsor of the bill on the intent of the language. These discussions led the superintendent to pursue amendments to the bill for clarification.”

The Montana School Boards Association could not immediately be reached for comment Friday afternoon.

The bill that passed in 2021 defined “human sexuality instruction” as including a long list of items, such as human sexual anatomy, intimate relationships, gender identity, contraception and other subjects.

The law applies not just to teaching, but to “otherwise providing information about” human sexuality.

In its draft language, OPI also requests that schools provide parental notice when students, not just educators and administrators, offer human sexuality materials in curriculum or at an event or assembly.

Additionally, the language would require notification no more than 10 days prior to the event or lesson — in addition to the current requirement to notify parents “no less than 48 hours” in advance.

Superintendent Micah Hill of Kalispell Public Schools said an opt-out policy has always been in place for sex education in middle school and high school. (He said elementary schools aren’t affected in a significant way.)

In 2021, SB 99 flew under the radar a bit. He said it wasn’t enacted right away, and schools didn’t recognize the impact it would have at the classroom level at first.

But since it took effect, he said schools are in touch with parents more frequently.

“We’re communicating more regularly what’s going on within our classrooms, which isn’t necessarily a bad thing,” Hill said.

However, he said the legislation is based on a “manufactured crisis in education” that isn’t applicable in Montana, and as such, it’s “a little bit of an overreach on the part of the legislature.”

Unless it’s challenged, he said the law might be something schools live with. He said administrators such as himself aren’t heavily affected, but the legislation has shifted a burden onto teachers.

For example, he said an English teacher presenting “Romeo and Juliet” now wants to know if the lesson requires advanced notice: “There is a love scene in the play. Does that constitute sex education?”

And he said government instructors will teach “mock Congress” and request students present draft bills. Since abortion is in the news, he said, a student may want to present a mock bill to restrict abortion in Montana: “Where does that put the teacher?”

He said OPI hasn’t given specific guidance, and lawyers have tried to do so on a case by case basis: “We’re just left to figure it out on our own.”

He said the attorneys’ interest is to uphold the intent of the law and reduce liability for the district, and it hasn’t been a huge issue in Kalispell.

“(But) there’s a nuisance factor to it,” Hill said.

O’Leary said draft language has been sent to legislators. OPI’s changes do not seek to more narrowly tailor cases in which schools must give parental notification.

“OPI trusts our local control with school districts following and implementing the Montana state teaching and learning standards set forth by the Board of Public Education,” O’Leary said.

He also noted OPI itself is affected and complying: “OPI is also following the law in SB 99 by offering parents transparency in the questions and an opt-out option for the Youth Risk Behavior Survey due to some questions focusing on human sexuality.”

The survey “assists educators and health professionals in determining the prevalence of health-risk behaviors as self-reported by Montana youth” and was initiated by the Centers for Disease Control and Prevention in 1988, according to OPI. It aims to identify the leading causes of mortality, morbidity, and social problems among youth.

Keila Szpaller is deputy editor of the Daily Montanan, a nonprofit newsroom. To read the article as originally published, click here.