Legal Standpoint: Guns on Campus

What Power Does Your Board Have to Prohibit Them?

By Lawrence White    //    Volume 21,  Number 2   //    March/April 2013

The overwhelming majority of the 4,500 degree-granting colleges and universities in the United States have policies in place that prohibit the carrying of firearms on their campuses. Today, however, there is a move afoot in some state legislatures to take away the discretion of institutional governing boards to determine for themselves whether guns should be permitted on campus.

Three states—Colorado, Utah, and Virginia—statutorily prohibit college and university governing boards from banning guns on their campuses. Legislation has been introduced in a dozen other states that would remove the power of higher education governing boards to enact weapons restrictions policies or that would guarantee the right of faculty and staff to carry concealed weapons on campus.

Statistics show that college campuses are extraordinarily safe. In 2011, a campus security report prepared by the U.S. Department of Education showed that the overall homicide rate at postsecondary education institutions was 0.08 per 100,000 students. By comparison, a 2011 U.S. Justice Department study calculated the criminal homicide rate in the United States as a whole to be 13.4 per 100,000 persons ages 18 to 24. That means that the homicide rate among college-age persons is approximately 165 times greater off-campus than on-campus—an extraordinary difference. That could be the impact of weapons bans on campus. Or maybe other factors explain the disparity.

These data notwithstanding, we as a society remain ambivalent about weapon prohibitions. According to a survey conducted for the Huffington Post’s “College” Web site in December 2012—shortly after the murders of seven people on a college campus in Oakland, California, and 20 first-grade students in an elementary school in Newtown, Connecticut—our nation is evenly divided on the question of whether persons should be entitled to carry concealed weapons on college campuses. The survey reported that “Americans are split evenly at 43 percent for and against when asked whether people with proper permits should be allowed to carry concealed guns on college campuses. … Forty-five percent said banning guns was more likely to keep a campus safer, with 33 percent saying they’d be safer if more students and faculty were packing heat.”

In District of Columbia v. Heller, a landmark case decided five years ago, the U.S. Supreme Court ruled that the Second Amendment to the United States Constitution protects an individual’s right to possess a firearm for traditionally lawful purposes. Heller has spawned lower-court decisions eliminating or qualifying the right of institutional governing boards to adopt policies regulating possession of weapons within campus boundaries. In September 2011 the Oregon Court of Appeals overturned a longstanding policy of the state university system that prohibited guns on campus, making it legal for any person with a concealed-weapon permit to possess firearms anywhere on public college grounds. Six months later, in a case brought by a group calling itself Students for Concealed Carry on Campus, the Colorado Supreme Court invalidated a University of Colorado policy banning guns from campus.

Until recently, gun control was not a national policy issue for higher education, and even today—as we can see from the rhetorical heat generated on both sides of the debate by President Obama’s gun-control initiative—it is a difficult subject to address rationally and constructively. From the perspective of governing boards, the notable feature of state legislative efforts so far is the extent to which those efforts collide with governing board prerogatives and traditional notions of institutional autonomy. Prohibiting a board from adopting a particular institutional policy may strike some board members as legislative overreach. Regardless of where your college or university is located, the issue is coming to state legislatures and state courts near you, and now may be a propitious moment to review pertinent institutional policies and pending legislative proposals with your legal counsel.

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