MAS v. Board of Barbers: “Best Practices” and Internal Policy Deviations Alone Do Not Establish “Generally Accepted Standards of Practice” for License Discipline

Introduction

In Montana Academy of Salons v. Montana Board of Barbers and Cosmetologists, 2026 MT 116, the Montana Supreme Court reversed the First Judicial District Court and set aside the Board’s final order disciplining a cosmetology school. The Board had sanctioned Montana Academy of Salons (MAS)—including a fine and five-year probation—based on alleged “unprofessional conduct” under § 37-1-316(18), MCA (2013), premised on MAS’s investigation and response to student reports of sexual misconduct by a massage therapy instructor.

The dispositive issue was not whether MAS’s investigations were imperfect (the Court accepted they were), but whether the Board could lawfully impose professional discipline under a “generally accepted standards of practice” provision when the purported standard was novel, unwritten, and effectively supplied after-the-fact through expert testimony— particularly where the Board equated “unprofessional conduct” with failure to follow one’s own internal policies.

Summary of the Opinion

The Supreme Court held the District Court erred in denying judicial review. It concluded the Board’s discipline was arbitrary and rested on an incorrect legal interpretation of § 37-1-316(18), MCA. The Court emphasized:

• This was a first-impression attempt by the Board to define a salon school’s “generally accepted standards” for investigating sexual harassment/violence reports.
• The record showed “best practices” and Title IX-oriented guidance, but not a proven, preexisting, “generally accepted” standard making strict compliance with internal policies a licensing requirement enforceable by discipline.
• The Board improperly grafted additional requirements onto the statute by treating internal policy deviations as “unprofessional conduct.”
• Imposing discipline based on a “loosely-worded” statute that can only be “defined by expert testimony” and read into after-the-fact “seriously risks arbitrary imposition of discipline without prior notice of standards.”

The Court reversed and remanded with instructions that the District Court grant MAS’s petition for judicial review and remand to the Board with instructions to adopt the Hearing Officer’s Recommended Order (dismissal). Because this resolved the case, the Court declined to reach MAS’s constitutional challenge to § 37-1-316(18), MCA.

Analysis

Precedents Cited

Blaine Cnty. v. Stricker, 2017 MT 80

Stricker supplied the standard framework for judicial review under MAPA, including that the same § 2-4-704(2), MCA criteria govern both district-court review and the Supreme Court’s review of the district court’s decision. The Court used this to justify direct scrutiny of whether the Board’s action was arbitrary/capricious and legally erroneous, rather than deferring to the district court’s affirmance.

DeBuff v. Mont. Dep't of Nat. Res. & Conservation, 2021 MT 68 (citing KB Enters., LLC v. Mont. Human Rights Comm'n, 2019 MT 131)

These cases were invoked to reinforce that a petition for judicial review requires review of the entire administrative record. In context, that mattered because the Board’s theory emerged through extensive hearings and briefing, underscoring the Court’s concern that the supposed “generally accepted” standard could not be identified with clarity ex ante.

Ulrich v. State ex rel. Bd. of Funeral Serv., 1998 MT 196

Ulrich was cited for the proposition that the agency bears the burden to demonstrate unprofessional conduct. The Court used this burden allocation to critique the Board’s approach: rather than proving an established “generally accepted” standard, the Board treated noncompliance with internal policies as self-proving “unprofessional conduct.”

Brookins v. Mote, 2012 MT 283

Brookins supplied the analogy between “generally accepted standards of practice” and negligence “standard of care,” including the principle that expert testimony is required to establish such standards unless the issue is readily ascertainable by laypersons. The Court accepted that expert testimony may be necessary, but the decision draws a line: experts may prove an existing standard; they may not effectively create a new licensing rule after-the-fact.

Newville v. Dep't of Family Servs., 267 Mont. 237

Newville reinforced why experts are used for professional standards—lay decisionmakers are typically not competent to judge specialized professional questions unaided. Here, that rationale supported the Hearing Officer’s and Court’s concern: if the governing standard can only be reconstructed from expert opinion in contested litigation, the regulated community may lack notice of what conduct triggers discipline.

Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629

Davis provided the Title IX liability benchmark: schools face damages only for “deliberate indifference to known acts of teacher-student discrimination.” The Court used this to contextualize that even under Title IX, a failure to follow policy does not, without more, equate to actionable indifference—undercutting the Board’s attempt to equate internal-policy deviations with licensable “unprofessional conduct.”

Karasek v. Regents of the Univ. of Cal., 956 F.3d 1093

Cited (with collected cases) for the proposition that the “deliberate indifference” standard is a “high bar” and that failure to follow guidance or internal policy does not ordinarily establish deliberate indifference. The Court used this to show the mismatch between the Board’s discipline theory and the established contours of Title IX enforcement.

Bd. of Barbers of Dep't of Prof'l & Occupational Licensing v. Big Sky Coll. of Barberstyling, 192 Mont. 159

Big Sky Coll. of Barberstyling anchored the critical administrative-law limitation: the Board cannot add requirements not found in the statute. The Supreme Court relied on this to hold the Board unlawfully “grafted” onto § 37-1-316(18), MCA a new rule: that strict compliance with internal harassment policies is itself a “generally accepted standard of practice” enforceable by discipline.

Legal Reasoning

1. Define the real question (discipline standard, not moral blameworthiness). The Court separated the emotional gravity of the underlying allegations from the legal inquiry: whether MAS’s conduct legally constituted “unprofessional conduct” within the statute.
2. Locate the statutory hook: § 37-1-316(18), MCA. Unprofessional conduct is “conduct that does not meet the generally accepted standards of practice.” The statute’s reference to malpractice/tort judgments as “conclusive evidence” (though “not needed”) underscored, for the Court, that the provision resembles an external, ascertainable standard—rather than an elastic vehicle for ad hoc discipline.
3. First impression plus no notice equals heightened arbitrariness risk. The parties stipulated the Board had never before disciplined a salon school on this theory. The Court treated that novelty as significant: without prior articulation (through rules, guidance, or consistent enforcement), the Board’s approach risked imposing discipline without fair notice of the operative standard.
4. Expert testimony proved, at most, “best practices.” The Hearing Officer found DLI’s expert described “best practices,” not “generally accepted standards of practice.” The Supreme Court endorsed this distinction as legally consequential: “best” does not equal “generally accepted,” and aspirational guidance cannot be converted into a disciplinary baseline absent a lawful mechanism (e.g., rulemaking).
5. Internal policies are not self-executing licensing regulations. The Board’s core legal move was to treat MAS’s deviations from its own policies as the statutory violation. The Court rejected that move as unsupported by the statute and as an impermissible addition of requirements. It also recognized MAS’s policy-based “perverse incentive” argument: if internal policies become discipline traps, regulated entities may respond by adopting minimal policies.
6. MAPA remedy: arbitrariness and error of law require reversal. Under § 2-4-704(2), MCA, the Court concluded MAS’s substantial rights were prejudiced because the Board’s decision was arbitrary and rested on incorrect legal conclusions. The appropriate remedy, given the record and the Hearing Officer’s recommendation, was remand with instructions to adopt the Recommended Order (dismissal).

Impact

• Constrains boards’ use of “generally accepted standards” as a catchall. The decision signals that § 37-1-316(18), MCA cannot serve as an open-ended license-discipline clause to enforce newly conceived “standards” that are not previously identifiable to licensees.
• Separates “best practices” from disciplinable minimum standards. Going forward, agencies will need to show that an alleged professional norm is not merely advisable, but actually generally accepted—and sufficiently knowable before enforcement.
• Encourages rulemaking or formal guidance for novel compliance expectations. If the Board believes certain investigative procedures are essential to public protection, this opinion suggests the lawful pathway is prospective articulation (rules/standards) rather than retrospective discipline.
• Limits discipline based solely on internal policy noncompliance. The ruling makes it harder for boards to transform a licensee’s voluntary policies into enforceable statutory duties unless the statute or validly adopted rules clearly do so.
• Provides a litigation template in first-impression discipline cases. Licensees facing discipline under broad “unprofessional conduct” language can use MAS to argue lack of notice, improper statutory grafting, and arbitrariness—especially where the agency’s theory depends on expert-driven reconstruction of the rule.

Complex Concepts Simplified

“Generally accepted standards of practice”

The baseline level of conduct widely recognized as the minimum acceptable in a profession—not the ideal or “best” approach. The Court treated this as akin to a professional “standard of care,” which must be identifiable and provable.

“Best practices” vs. enforceable standards

“Best practices” are recommended methods; they may exceed the minimum. The Court held that discipline cannot rest on aspirational guidance alone without a proven generally accepted minimum standard and adequate notice.

Arbitrary or capricious (MAPA judicial review)

An agency acts arbitrarily when it applies an unclear or shifting rule, or makes decisions without a stable, articulated standard. Here, the Board disciplined MAS based on an unwritten standard (strict internal-policy compliance) that had not previously been enforced or defined.

“Grafting” requirements onto a statute

When an agency effectively adds new obligations not found in statutory text (or valid rules), it exceeds its authority. The Court concluded the Board did so by turning policy noncompliance into “unprofessional conduct” under § 37-1-316(18), MCA.

Title IX “deliberate indifference”

A high legal threshold for school liability: the school must respond to known harassment in a clearly unreasonable way. The Court used this to show that even in Title IX law, a failure to follow policy does not automatically establish legal fault.

Conclusion

Montana Academy of Salons establishes a practical constraint on professional discipline under § 37-1-316(18), MCA: a board may not impose sanctions based on an unwritten, first-impression “standard” effectively defined after-the-fact through expert testimony—particularly where the board equates unprofessional conduct with mere deviation from internal policies. The decision draws a firm boundary between aspirational “best practices” and disciplinable minimum standards, and it underscores that administrative enforcement must be grounded in clearly articulable, non-arbitrary standards that regulated parties can know in advance.