Associated Press
The Utah Supreme Court is considering whether the University of Utah has the right to continue its decades-old campus gun ban, as well as the larger issue of how much power the state Legislature has over higher education’s academic freedom.
Assistant Attorney General Brent Burnett, representing the state before the court Monday, told the justices that because state founders never specifically granted the universities autonomy, the University of Utah had no right to disobey a law.
The university, Burnett said, ?is to be treated like any other state agency,? and that academic freedom didn’t extend to banning firearms or otherwise resisting legislative powers.
But university attorney Alan Sullivan said that unlike a state agency, the University of Utah and Utah State University, formerly known as the Agricultural College, were created in the Utah Constitution.
The University of Utah, Sullivan said, “is not a creature of the Legislature.” How the justices ultimately decide the case, he said, would determine whether the Legislature has the power to direct academic, not just fiscal, matters of the University.
The hearing was the result of Attorney General Mark Shurtleff’s appeal of a September 2003 lower court ruling that sided with the university. In that case, 3rd District Judge Robert Hilder ruled the university’s gun ban did not violate state law.
In February, the Utah Board of Regents asked a Utah Senate committee to be allowed to continue to let universities set their own policy regarding guns on campus. As an alternative, the regents said the state might designate the institutions as sanctuaries, similar to religious organizations in the state, which have been allowed to determine their own gun policies.
Instead, lawmakers passed Senate Bill 48, which gave the Legislature sole authority to regulate gun rights statewide and specifically forbade public school districts, public schools or state universities to enact on-campus gun bans. The bill allowed property owners to forbid firearms in their own homes, but left murky was whether commercial properties such as the Delta Center in Salt Lake City, which forbids weapons, would be violating the law.
Shurtleff promised that if the bill passed, he would drop his appeal of Hilder’s ruling. Instead, the appeal continued, but with both sides limiting their arguments to whether the ban violates the state Constitution.
Central to that question is the state Constitution’s Article X, section 4, which states, ?The location and establishment by existing laws of the University of Utah, and the Agricultural College, are hereby confirmed, and all the rights, immunities, franchises and endowments heretofore granted or conferred, are hereby perpetuated unto said University and Agricultural College, respectively.?
Burnett argued that means the university has no autonomy and is subject to existing laws. Sullivan said it meant the opposite, that the university has rights of its own and that the only power the Legislature has over the university is fiscal.
During arguments, Justice Jill Parrish twice questioned the lawyers about how the Utah provision meshed with the federal Constitution’s guarantee of the right to keep and bear arms. Neither attorney thought that significant. Burnett said it would matter only if the university had autonomy, which it doesn’t. Sullivan said the university ban didn’t prevent people from possessing firearms elsewhere.
The justices took the matter under advisement, and will issue a ruling at an undetermined time.
The 28-year-old campus gun ban made its way to court in 2002, when the University of Utah filed what it characterized as a friendly lawsuit in U.S. District Court, asking a judge to uphold the ban. The university took the action after Shurtleff said the prohibition was at odds with state law.
U.S. District Judge Dale Kimball found that because most of the university’s claims had to do with state law, the matter should be decided in state court.
