[Vision2020] Legal Options for Idaho Faculty and Classroom Firearms (Re-Posted)

[Nicholas Gier]

This came through on one e-mail account but not my gmail account, so I'm
posting it again.


*Options for Idaho Faculty and Firearms in their Classrooms*



By Nick Gier, President, Idaho Federation of Teachers



            The presidents and their faculty at Idaho’s colleges and
universities voiced their strong opposition, but the Idaho Legislature
nevertheless passed Senate Bill 1254 allowing firearms in our classrooms.
The UI faculty union has hired an attorney to research the legal options
for Idaho teachers, and I will now summarize his legal memo on this vital
matter.  See the complete document attached.

            In 2008 the U. S. Supreme Court ruled in *District of Columbia
v. Heller*that the Second Amendment right to bear arms may be limited in
some instances.  Specifically, the good justices stated that laws that
prohibit firearms in schools and government buildings are constitutional.
They also concluded that laws “imposing conditions and qualifications on
the commercial sale of arms” may be allowed.

            In 2010 the Supreme Court reaffirmed *Heller* in *MacDonald vs.
City of Chicago*, ruling that *Heller* applies to state governments.  The
justices reiterated their exclusion of carrying weapons in schools and
government buildings from Second Amendment protection.  In its passionate
Second Amendment absolutism, the Idaho Legislature ignored conservative
jurists on the highest court in the land.

            With regard to Idaho’s Constitution and the right to bear arms,
our attorney noted that Idaho laws currently ban “firearms in public
schools and most county courthouses, including the Latah County Courthouse.
. . , and my best educated guess is that a university ban on firearms does
not violate Idaho’s ‘Second Amendment.’”

            Our attorney argues that the UI could have used its
constitutional status as a  means to nullify Idaho Senate Bill 1254.  The
UI was established in 1889, one year before the state of Idaho.  The Idaho
Constitution includes the UI Constitution, which entrusts the UI Regents
with ultimate power to make decisions for the University. Theoretically and
legally, the UI Counsel’s office could have advised the UI Regents to
refuse to implement Senate Bill 1254.

            Our attorney cites four Idaho Supreme Court decisions that
upheld the UI’s status as a separate legal entity. For example, there is
the 1921 case of*Black v. State Board of Education*, in which the Idaho
Supreme Court ruled that the UI could not be compelled to hand over money
from the sale of its property to the state.  The justices’ reasoning was
that the UI, having its own constitution, is “not subject to the control or
supervision of any other branch, board or department of the state
government, but is a separate entity.”

            Idaho Senate Bill 1254 does exclude firearms from student
dormitories and public entertainment facilities of over 1,000 seats. Other
than these exceptions, however, our attorney states that the breath of this
new law is “quite extraordinary.”  A person with an “enhanced concealed
carry permit” does not actually have to conceal the weapon.  Our attorney
explains that a person “will be allowed to walk around campus and into
classrooms with a gun in plain view, and the UI cannot regulate this in any
way.”

            While our attorney believes that Senate Bill 1254 violates the
UI’s own constitutional right to administer its own affairs, he does not
believe that it would be advisable for any faculty member or faculty group
to sue the State of Idaho.  First, as odd as it sounds, we may not have
legal standing to do so. Second, even if faculty succeed in challenging the
law, the UI itself has already decided to comply with the law, and there is
obviously nothing illegal or unconstitutional about its doing so.

            Another legal alternative is to require that students attending
Idaho’s colleges and universities sign a contract stipulating that they may
not bring firearms to class. In *George v. University of Idaho* the Idaho
Supreme Court ruled that “the principal relationship between a college and
its students is contractual.”  Our attorney, however, concedes that “not
all contracts are legal or enforceable.  Agreements which violate public
policy or law are sometimes held to be illegal contracts.”

            Alternatively, Idaho faculty could argue that Senate Bill 1254
violates their own contracts with their institutions. University policy
manuals are considered part of a faculty member’s contract, and the UI
*Faculty-Staff
Handbook* states that the UI “will foster an academic environment conducive
to the students’ mental, physical, and social development and well-being”
(Sec. 1320 E-1).

The *Handbook* also states that “certain forms of responsible conduct must
be adhered to in order to ensure the physical functioning and safety or
security of the [UI] community”(Sec. 2300 Art. VI, Sec. 1).  Faculty
members could very well argue that their contractual duties promoting
student well-being and maintaining classroom security are violated by
Senate Bill 1254.

            Most Idaho faculty receive an annual contract stating their
salary and conditions of employment.  Before signing, language such as the
following could be added: “I reserve the right to control what objects and
materials students may bring into the classroom.”

Asserting their own autonomy, faculty members could also put up a sign “no
weapons allowed” on their classroom doors, or they could offer an
equivalent on-line course to arms-carrying students. They could also
request that their classes be held in one of the large halls exempted under
the new law.

As we are unsure about the success of any legal action against the state,
we recommend that Idaho faculty, if they so desire, follow through with
some of these contractual options or classroom strategies.

Nick Gier is President of the Idaho Federation of Teachers, AFT/AFL-CIO.
He taught philosophy at the University of Idaho for 31 years.
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