Tuesday, February 22, 2011

Freedom of associations/ freedom in associations watch

Arizona is considering requiring universities to allow concealed-carry permit holders to wear their guns on campus, and Texas seems to be close to doing so.

One view: This fails to recognize the autonomy of universities as self-governing institutions. Merits aside, it is rightly a matter for universities to decide. Universities are much more likely than state legislatures to correctly understand the dynamics of classroom life, dormitory life, Greek systems and drinking, and much more that should go into making a decision about permitting firearms on campus. Public universities should be free (as private universities are) to decide that for themselves.

Another view: students and professors do not leave their freedom at the campus gates. The First Amendment directly applies to public universities: their self-government does not extend to passing hate-speech regulations, or discriminating against religious student newspapers, or judging candidates for employment based on their political views, or establishing a religion. In the many American states where the voters and/or legislatures have decided that individual freedom encompasses wide latitude to carry firearms in public places, the public universities don't have any authority to trump that judgment. Public universities, unlike private universities, must respect the freedom of their members as individuals. Their associational freedom to make their own internal rules is a lesser matter, and even somewhat suspect, since they are state agencies.
Posted by Jacob T. Levy at 8:06 AM
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5 comments:

Aeon J. Skoble said...

I'll go with "another view." If local governance doesn't trump the 1st Am, why should it trump the 2nd? In your "one view" summary, there's no reason (on that basis) not to have speech codes. The analogy cuts both ways: either local governance means speech codes and disarmament, or fundemental liberty guarantees for both speech and guns must be respected.

10:05 AM
David Watkins said...

If local governance doesn't trump the 1st Am, why should it trump the 2nd?

One way we might distinguish between the two is that the current state of 1st amendment interpretation and jurisprudence is a great deal more settled than that regarding the second amendment. Indeed, Scalia's decision singled out schools prohibiting guns in his discussion of the limits to 2nd amendment rights in Heller:

"nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

He may well have meant K-12 schools only, but even then a reasonable case could be made that universities are "sensitive places such as." (This may have been amended/clarified in a more recent in a more recent case, I'm not an expert here). There at least seems to be a prima facie reason to think that the current state of constitutional jurisprudence on the second amendment doesn't resolve this question concretely enough to override local governance.

11:54 AM
Jacob T. Levy said...

I think that's clearly right as a matter of federal jurisprudence. As of yet we just don't know what regulations, beyond complete prohibitions, are ruled out by the Court's interpretation of an individualistic Second Amendment. So Aeon's argument won't hold as is. And indeed, no one is saying that public universities are *already constitutionally required* to permit guns on campus; they're facing new legislation, not that kind of judicial challenge.

But state constitutions are often much more, and more clearly, protective of individual gun rights than is federal jurisprudence (at least so far).

And more generally, I'd say: the First Amendment line of precedent here clearly identifies the public universities as a part of the state-- which is to say, as parts of the states, severally. But the idea that universities are self-governing institutions that ought to have standing to say "no" to the state legislatures pushes against that.

12:09 PM
Aeon J. Skoble said...

Jacob, I'm not seeing what about my argument doesn't hold. I'm not basing my argument on current con law; I'm not a lawyer. Your third paragraph seems to agree with me, so what do I need to rethink in your view?

1:25 PM
David Watkins said...

Aeon, your argument explicitly drew on a direct analogy between the first and second amendments, so you may not be a lawyer, but you're making an argument about constitutional law all the same--that the 1st and 2nd amendment are equally applicable in this particular context. If your position is that Scalia and the Heller majority were erroneous in how they carved out exceptions to the exercise of the 2nd amendment, that's a different matter. But the current debate is about the legitimate range of options for public universities in a world where Heller and it's limitations are the law of the land. "Local governance except when explicitly prohibited by the Constitution as currently interpreted" is a reasonable and plausible position.

(Setting aside for the sake of argument Jacob's valuable point about state constitutions).

2:23 PM

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