Banning Weapons on Campuses: The Battle Is Far from Won

February 13, 2009

At the close of 2008, many of us involved with higher education breathed a sigh of relief — however briefly — as legislation that would allow people with concealed-weapons permits to carry guns on campuses failed to pass in 17 states. Protecting students, faculty members, and administrators from gun violence is not something that colleges should be barred from accomplishing.

But much of the legislation will undoubtedly be reintroduced, as legislators and pro-gun groups persist in pushing their agendas and attempting to impose their views about the best way to protect campuses. Along with those legislative efforts, lawsuits involving two large universities indicate the legal obstacles that institutions may encounter in attempting to ban weapons.

Utah is the only state that prohibits its state institutions from barring guns on its campuses. The University of Utah fought that statutory requirement vigorously in court, but the interests of pro-gun groups prevailed. In 2006 the Supreme Court of Utah held that the university lacked the authority to issue firearms policies, including barring concealed weapons, because such policies were contrary to the state's statute. As a result, the university is prohibited from enacting or enforcing any policy that restricts the possession or use of firearms.

Last December, the grass-roots organization Students for Concealed Carry on Campus and three individuals — two students at the University of Colorado and one alumnus — filed a complaint in state court against that university's regents, two chancellors, and two campus police chiefs. The individual plaintiffs are members of Students for Concealed Carry on Campus and licensed to carry concealed weapons. The Mountain States Legal Foundation, which describes itself as a "public-interest law firm dedicated to individual liberty" and "the right to own and use property," represents the plaintiffs.

The lawsuit challenges the university's policy of prohibiting the possession of "firearms, explosives, or other dangerous or illegal weapons on or within any University of Colorado campus, leased building, other area under the jurisdiction of the local campus police department, or areas where such possession interferes with the learning and working environment." The policy, adopted in 1994, declares that it is intended to establish a standard of conduct for employees, students, and visitors.

Colorado passed the Concealed Carry Act in 2003, allowing permit holders to carry concealed weapons, except in locations prohibited by federal law, in elementary and secondary schools, in public buildings with metal detectors, and on private property. Colleges and universities are noticeably absent from the list of places where the right to carry concealed weapons may be prohibited. In response to the legislation, the University of Colorado regents asked the state attorney general whether the university could enforce its policy. The attorney general issued an opinion stating that, because Colorado's constitution and statutes authorize the regents to govern the university's internal affairs — a mandate not pre-empted by the Concealed Carry Act — the weapons policy was permissible.

In the lawsuit against the university, however, the plaintiffs assert protection of the right of self-defense. Martha Altman, the only female individual plaintiff, has alleged concern over reports of sexual assaults at the university and asserts the need to exercise her right to carry a weapon there to ensure her personal safety. Besides challenging the weapons ban on statutory grounds, the lawsuit also claims that the policy violates Colorado's constitution, because the policy broadly denies the right to bear arms and makes no exception for self-defense. The university's response to the complaint is the next step in what will most likely be a lengthy dispute.

Underscoring the chasm between those who want to ban guns on campuses and those who oppose such bans, a January 1 essay by the president of the Mountain States Legal Foundation on the foundation's Web site asserts that students at University of Colorado campuses believe that "one of the most dangerous settings they will encounter [is] 'a gun-free zone.'" It is difficult to imagine how colleges can provide safe environments if most constituents have the right to carry concealed deadly weapons. Adding guns to the normal conflicts that arise, or to alcohol, drugs, competitive sports, or depression, is a recipe for disaster.

The stated agenda for Students for Concealed Carry on Campus is to "push state legislators and school administrators to grant concealed-handgun license holders the same rights on college campuses that those licensees currently enjoy in most other unsecured locations." Following its first national conference in Washington last August, the organization conducted an aggressive media campaign in November, promoting its cause to students, professors, administrators, legislators, and media outlets across the country.

In light of the lawsuit against the University of Colorado, the legislation that is likely to be proposed or reintroduced in many states, and the challenges from organizations like Students for Concealed Carry on Campus, the Mountain States Legal Foundation, the National Rifle Association, and local pro-gun groups, administrators should carefully consider the following:

State laws. Do your state statutes, regulations, or constitution restrict your ability to prohibit or restrict weapons on campus?

Legislative efforts. Are you aware of pending or recently introduced legislation in your state regarding weapons on campuses? Over the past two years, nearly half of the state legislatures have introduced legislation, in many instances seeking to expand the rights of concealed-weapons permit holders to possess weapons on campuses.

Policies. Do your weapons policies comply with your state's laws? Are the state laws broad enough to allow your institution to impose and enforce restrictions where necessary? If you are not already doing so, now is the time to work with your government-relations experts to introduce legislation and regulations that better promote and protect the safety of your institution.

Special-interest groups. Are you aware of the activities of the weapons special-interest groups on and around your campus? Pro-gun rights groups are active not only in influencing state legislation, but also in mobilizing support among students and faculty members. Supporters of gun control on campuses — like the Brady Campaign to Prevent Gun Violence and the American Council on Education — seek to protect the rights of colleges to ban weapons.

College administrators are acutely aware that policies and legislation cannot prevent all of the dangers associated with weapons-related violence. But adopting safety initiatives and weapons-related policies can be a significant part of eliminating the risks of violence. Now is the time to know your state laws, to be aware of any proposed legislative or policy proposals that seek to permit weapons on campuses, and to support any efforts to block such dangerous proposals.

Sandra J. McLelland and Steven D. Frenkil are lawyers at Miles & Stockbridge, in Baltimore, where they represent colleges in employment law and other matters.