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Outgunned, for Now

June 16, 2014

“When may I shoot a student?” A Boise State professor’s satirical question, posed in the pages of The New York Times in February, brought national attention to a bill – then under consideration in the Idaho Legislature -- allowing guns on the state’s college and university campuses. The bill revoked the authority of college and university governing boards to regulate or prohibit “the otherwise lawful possession, carrying or transporting of firearms or ammunition.”  Idaho Governor Butch Otter signed the bill into law March 12, roughly two weeks after Greg Hampikian’s piece appeared. The law goes into effect July 1.

The bill passed over cries of opposition from many academics, including every public-college president in the state. But some Idaho faculty, although outgunned at the legislature, continue to combat the law, even now that the legislative session has ended. Last week the University of Idaho faculty union, a branch of the American Federation of Teachers, unveiled a legal memo suggesting various ways faculty could respond to the weapons bill. The memo proposes strategies that range from the structural (filing a suit arguing the law is unconstitutional) to the satirical (having professors carry guns into classrooms themselves “to highlight the absurdity” of the new law).

Benjamin Onosko, the attorney who authored the memo for the faculty union, wrote in the document that “the most effective way” to combat the law is a strategy that, for now, seems closed off: having the university challenge the law by arguing the statute violates Idaho’s constitution.

Is Idaho’s Gun Law Unconstitutional?

The University of Idaho, unlike most public institutions – including other institutions in Idaho -- was created by the state constitution, not by the legislature. (In fact, the University of Idaho predates Idaho itself: the institution was established one year before the state of Idaho was admitted to the Union.)

And the state constitution, Onosko argued, gives the flagship university broad powers. These constitutionally granted powers include “all the powers necessary to accomplish the objects and perform the duties” of the university, “the custody of books, records, buildings and other property of said University,” and the ability to “prescribe rules and regulations for the management of the libraries, cabinet, museum, laboratories and all other property of the University.” (This language comes from the act of the Territorial Legislature that created the university; the act was later adopted into the Idaho constitution.)

“The important part is the language used in the constitution,” Onosko said in an interview. “The legislature can regulate the university in certain ways, but it can only regulate it in ways that don’t violate the university’s powers under the constitution.”

Onosko argued that the gun law trespasses upon the institution’s inherent powers. “I think it does go to the administration and the day-to-day affairs of the university, and with the broad language in the constitution, giving the Board of Regents the power to run the school, to regulate it, in my opinion [the law] would encroach upon that,” he said.

The University of Idaho, however, has decided to comply with the new statute. Idaho officials said in an email that “the Idaho State Board of Education (SBOE) and the University of Idaho Board of Regents has instructed the institutions to apply SB 1254 on our campuses, effective July 1, 2014.”

The University of Idaho has challenged laws in the past. In 1921 the university fought a bill that directed the flagship to turn over funds from the sale of university property to the state. The Idaho Supreme Court ruled that the university had the right to control its own funds. The law was repealed.

Onosko said the Board of Regents surely knew it could challenge the gun law, but chose not to. “One thing could be they’re not interpreting the laws as broadly as I am,” he said. In other words, the board may not think guns on campus infringe upon the institution’s inherent powers.

Nick Gier, secretary of the university’s faculty union, offered another explanation for why the board complied with the bill.

“The Board of Regents … is essentially an arm of a very conservative Republican governor,” Gier said. The governor appoints the members of the Idaho State Board of Education, which serves as the University of Idaho's Board of Regents.

“[The board] would reject any suggestion from the University of Idaho that it refuse to comply with this law,” the retired philosophy professor said. “It’s in our hands, the faculty, to act against this law."

Varieties of Resistance

In the absence of a constitutional challenge by the university, few legal options for faculty remain.

Idaho professors, rather than the Board of Regents, could challenge the law’s constitutionality. But a court might find that faculty lack legal standing to bring suit.

And a suit by a professor against the university – arguing that the law violates the contractual relationship between the university and the faculty – is less appealing. Such a suit could require “that some adverse action be taken against a faculty member” before the faculty member could sue, Onosko wrote in the memo.

Given the slim chance of a successful legal battle by faculty, Gier and others are now resting their hopes on extralegal forms of protest.

“We think the most practical options are ones the faculty themselves initiate,” Gier said. “The last bastion of faculty autonomy as our rights are eroded elsewhere is the classroom.”

The memo traces a number of classroom strategies. Professors could post “No Guns” signs on their classroom doors. They could request their classes be held in large auditoriums (the bill does not permit concealed weapons in performance areas that seat 1,000 or more people). They could offer online classes equivalent to in-person ones for weapons-carrying students. Or, the memo suggests, professors could open-carry their guns as “a show of civil disobedience.” One passage, unusually tongue-in-cheek for a legal document, recommends professors sling rifles and shotguns over their shoulders to achieve maximum effect. “[C]omplementary garb such as coonskin hats and boots with spurs could help hearken back to the 19th century when laws such as this might have been rational,” Onosko advised in the memo.

These strategies, too, however, may be barred from faculty, University of Idaho officials said.

In the aftermath of the bill’s passage, Idaho’s State Board of Education developed a weapons policy dictating compliance with the new law and recommending consistency among institutions. Provided that the state board affirms this policy as expected, “any effort to deviate” from the gun law “would be a violation of University policy,” a University of Idaho spokesperson said in an email. The state board will vote on its weapons policy at its June 18-19 meeting.

The decision by the state board “will render the bulk of the analysis in the memo moot, including any action by individual faculty to offer online-equivalent courses to weapons-carrying students or to disallow concealed weapons in the classroom (provided the carrier has the appropriate permit),” the University of Idaho spokesperson said. “Faculty taking such action would be in violation of university policy after July 1.”

Daniel Page, associate director of legal research for Students for Concealed Carry, a national advocacy organization that supported the Idaho law, said the group would "consider filing suit" if a professor turned away an armed student or posted a sign prohibiting weapons in the classroom.

"The professor doesn't own the classroom," Page said. "It's the government's."

Ruprecht Machleidt, a physics professor at the University of Idaho, estimated that 90 percent of Idaho faculty opposed the bill. He said “the faculty who dislike this law … are in a position with very little leverage.”

“I may consider to put in the syllabus that I don’t want any firearms in my classroom,” Machleidt said. “But a student can say, 'Well, if you kick me out you’re violating the latest Idaho state law.' The student will win [in court], I can predict that.”

Machleidt spent the first 40 years of his life in Germany and now holds dual citizenship. He said the ubiquity of guns astonished him when he first moved to the U.S.

Anticipated Consequences

Hampikian, the Boise State University professor who wrote the Times article, said he doubts the presence of firearms on campus will change the classroom atmosphere. But he said he thinks officials will see increased injuries due to gun accidents.

“I see this as a statistical phenomenon,” the biology professor said. “We are inflicting these accidents on a population that’s receiving no benefit. I haven’t seen convincing data that crimes are being stopped by people with 19 hours of training who are carrying guns around. But I do know that where there are guns there are gun accidents. You just have to look at the stats or talk to Dick Cheney.”

Hampikian said he might put up a sign saying “No guns preferred,” or “Please, no secondhand bullets.”

“I just think it’s unfortunate that we’re taking a safe place and making it harder for law enforcement,” he said.

Page said professors had the right to state a preference about guns in the classroom, but "whether they use the school's and state's resources to do that is an entirely different matter."

"We prefer that professors use their classrooms to teach, not to spread their political agenda," he said.

Boise State officials said preparing for the law – including doubling security staff and giving them arms – will cost $500,000 up-front and nearly $1 million each year, NWCN reported.

University of Idaho officials said the only projected cost the gun law necessitated was an expansion of the university’s surveillance system.

Onosko said the law may have an unanticipated consequence: students carrying weapons openly on campuses.

Idaho has no laws prohibiting people from openly carrying firearms in public (with the exception of certain places such as jails, courthouses, and K-12 schools), the attorney said. But Idaho citizens can only carry concealed weapons if they have a permit. The state has no laws banning open carry on college campuses, Onosko said.

“I think it is highly unlikely that the legislature intended that someone who gets a concealed carry permit thereby loses their right to open carry, and must always carry all their guns concealed,” he said. “If the legislature wanted to ban open carry on campus, or allow the university to do so, it could have written the new law to specifically exclude open carry, or included language saying that persons with these enhanced permits are only allowed to carry their weapons concealed. By not including this language, I think the legislature showed that it had no intent to prohibit open carry on campus.”

The weapons policy developed by Idaho’s State Board of Education states that “All institutions shall allow the concealed carry of firearms and ammunition by holders of licenses.” It makes no mention of open carry.

Page confirmed that, in the aftermath of the campus-carry statute, no law prevented students from carrying weapons openly on campus. He said, however, that he thinks the Idaho law as it stands is sufficient.

"There's no law in Idaho against showing up to class in a gorilla suit, either," Page said. "I think social stigma and social pressure will solve the problems we face."

The attorney said Students for Concealed Carry did not take a stand on whether students should be able to carry guns openly on campus.

In an open letter to Hampikian published March 3, the group's director of public relations wrote that the “predictions of doom and gloom” surrounding campus-carry laws have “not come to pass in Colorado or Utah” – two of seven states that allow concealed weapons on campus – “nor will they come to pass in Idaho.”

 

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