concurring in part and dissenting in part.
I agree with the result of the majority opinion in remanding to the District Court for further proceedings in light of the availability of insurance coverage, although I disagree with its rationale in Crowell v. School Dist. No. 7 (Mont. 1991), [247 Mont. 38, ] 805 P.2d 522, 48 St.Rep. 81, [10 Ed.Law 8,] that the availability of the coverage is predicated upon a waiver of immunity. I also agree with the majority’s remand for consideration and determination of the § 1983 claims. I must, however, respectfully dissent from the Court’s interpretation of § 2-9-111, MCA, as it applies to this case and from the Court’s refusal to address the constitutional issue before it.
With regard to the immunity issue, I am not blind to the importance of precedent. However, I cannot assent to the application of this Court’s precedents in the area of so-called legislative immunity as it relates to this case. For the Court to expand its previous holdings *335which were, in my view, legally incorrect to begin with, to provide immunity to an employee who (if the allegations herein are taken as true) rapes and sodomizes a four-year-old special education student on the basis that the employee was engaged in the “lawful discharge of an official duty associated with action by the legislative body” is beyond the bounds of reason, legal or otherwise.
Finally, it is my view that the Court has an obligation to address the equal protection issue which is before it. The classifications which have resulted from the Court’s immunity rulings are troubling, at best, and may be constitutionally infirm. I have not determined whether I believe those classifications can meet the rational basis test. I am, however, convinced that it is time for the Court as a whole to address the question. If it is the Court’s view that additional briefing or argument is needed, the Court need only direct such a course of action. We should not careen farther down the immunity path without determining whether we have been a party, through our interpretations of legislative enactments, to depriving the citizens of Montana of their constitutional rights.