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Avoiding a Legal Shootout

December 4, 2006

When the University of Utah lost a state court battle in September over its ban on firearms, officials said that they would fight to keep the prohibition, by taking the case back to federal court and linking the gun policy to academic freedom.

The university has changed its approach and is no longer pushing for a federal ruling. Instead, the university is accepting its Legislature's right to decide the issue and is seeking lawmakers' permission to bar guns from at least part of its campus. The debate over guns on Utah campuses -- perhaps now headed to a compromise -- is an unusual one, involving security, legislative power and academic freedom. The case has been closely watched by college lawyers nationwide because most colleges do ban firearms, even in states where guns are popular.

The dispute in Utah dates to 2001, when Mark Shurtleff, the attorney general, issued an opinion finding that the University of Utah’s gun ban violated state laws barring state or local entities from enacting restrictions on access to firearms. The university sued in federal court, charging that its academic freedom assured by the First Amendment was being violated, and also stating that Utah lawmakers had given the university considerable autonomy when they created it — enough to allow the university to set its own gun policy.

A federal judge ordered that the state issues be heard first, in Utah courts, and that set up a series of legal hearings that led to September’s Utah Supreme Court ruling. That ruling said that the autonomy granted the university did not extend to state laws banning gun prohibitions by units of state or local government. It was at that point that university officials said that they would return to the academic freedom arguments in federal court.

Instead of doing that, however, the university and the state attorney general obtained permission from the federal court to first see if the issue couldn't be resolved legislatively. Michael Young, president of the university, said in an interview Sunday that both sides would be going into the negotiations with open minds, and that he thought it would be possible to reach an agreement. Legislative leaders could not be reached over the weekend, but have indicated to Utah reporters that part of their anger at the university was a sense that it was ignoring state law (and them), and that this new approach will be met with good faith.

"If you set aside the power issues, the Legislature wants these kids as safe as we do," Young said. And he added that he expected any compromise to apply to other colleges in the state, not just the University of Utah, which has led the legal battle.

Young said it was important to go into the discussions "without hard positions," but he said there were specific areas in which he expected the university to seek the right to bar firearms, especially dormitories and stadiums. "There is some sense that dormitory type communal living arrangements may not be the best place to have weapons," he said, adding that "It's a little hard to see their utility in athletic venues."

Classrooms and faculty offices may also be an area where guns should be banned, he said. Young noted that while Utah has not had any gun deaths, institutions that have had them have seen the incidents take place in faculty offices.

On the question of academic freedom, Young said that his concern has been more related to physical safety than to questions of legislative control. "It seems to me that academic freedom flourishes better in an environment where people have no fears for their physical safety," he said. At a place like a university, where "you are in a situation where people are challenging other'sfundamental beliefs," assuring that security is particularly important.

In switching legal strategies, Young said he realized that the university would not always please state leaders in every way -- and that on issues of fundamental importance, the university would take whatever stand was appropriate. "We aren't going to look for polling data to see if the world is round or flat."

At the same time, he said, "we are an instrumentality of the state and we have a particularly role in the state." In that context, he said, is is far preferable to resolve differences with legislators through negotiations rather than in court. (Young was not at the university when the court battle started in 2001.)

Court should be the last resort, he said. "I'm a lawyer, and as any sensible lawyer will tell you, court is the last place to go."

 

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