Lawyers, Guns and Autonomy

Setting their sights on tenure in Texas, critical race theory in Oklahoma, transgender athletes in Idaho and academic freedom in Florida, radical Republican legislatures have effectively announced that higher education is now one of their preferred targets. As public colleges and universities are drawn into the nation’s culture wars, we may well wonder what can stop legislatures, in league with like-minded governors, from rendering higher education a mere handmaiden of their right-wing agendas.

However improbable, one possible answer can be found in that prototypical red state, Montana, where its Supreme Court recently voided a statute that would have permitted students, staff and faculty to carry guns, open as well as concealed, on campus. That victory comes at considerable cost, though, for it bolsters the autonomy of a governing board whose rule over the academy is itself inherently antidemocratic.

Pistol-Packing Cultural Warriors

About a fifth of states have adopted legislation that effectively requires public universities to permit guns on campus, although most have the ability to prohibit their possession in specific venues or at certain events (for example, in athletic stadiums and disciplinary hearings). This year, lawmakers introduced at least a dozen bills in nine states seeking to bar governing boards from banning guns from campuses or otherwise expand campus carry policies. Future efforts aiming to do the same will no doubt draw support from the U.S. Supreme Court’s decision in New York Rifle & Pistol Association v. Bruen, announced in June, which held that the Second Amendment protects “an individual’s right to carry a handgun for self-defense outside the home.” As the Republican right racks up more wins on this front, research indicates, the upshot is depressingly predictable: “Policies allowing civilians to bring guns on to college campuses are unlikely to reduce mass shootings on campus and are likely to lead to more shootings, homicides, and suicides on campus—especially among students.”

Given this grim forecast, there is good reason to celebrate the prescience demonstrated by the Board of Regents of the Montana University System (MUS) when, in 1999, its members adopted Policy 1006, which prohibits anyone but security officers from carrying firearms on that state’s public university campuses. The board thereby acknowledged that professors are less likely to teach and students less likely to debate controversial issues when firearms are present in the classroom, thereby compromising the academy’s basic mission. This policy was negated in 2021, however, when Republican governor Greg Gianforte signed HB 102 into law, removing Montana’s public universities from the list of places (for example, detention facilities and courtrooms) where firearms, whether open or concealed, can be banned.

Parroting one of the National Rifle Association’s less plausible clichés, the Montana Legislature promised that HB 102 will “enhance the safety of people by expanding their legal ability to provide for their own defense by reducing or eliminating government-mandated places where only criminals are armed and where citizens are prevented from exercising their fundamental right to defend themselves and others.” True, the Board of Regents could still adopt certain narrowly tailored regulations (for example, banning firearms at events where alcohol is served or prohibiting persons from pointing pistols at others except in self-defense). Beyond these limits, though, the law prohibited the board from enacting regulations that diminish the “rights of the people to keep or bear arms as reserved to them in Article II of the Montana constitution.” A campus armed to the hilt, apparently, is not merely the most secure but also the most free.

Who Rules the Academy?

Shortly after its adoption, in response to a petition filed by the Board of Regents, a district court enjoined enforcement of HB 102 on Montana’s public campuses and granted the board’s motion for summary judgment. After the state appealed, the Montana Supreme Court affirmed the district court’s ruling in late June, upholding the board’s authority to ban all but security personnel from toting firearms on campus.

The question before Montana’s highest court, wrote Justice Laurie McKinnon, is this: “Whether the Board of Regents of Higher Education possesses the exclusive authority to regulate firearms on college campuses” (italics in original). Like most good questions, this one has a history. Montana’s first constitution provided for the establishment of a “state university.” “General control and supervision” over this entity was vested in a board whose members (leaving aside those serving in an ex officio capacity) were appointed by the governor and confirmed by the Senate. The “powers and duties” of this body, the 1889 constitution added, were to be “prescribed and regulated by law,” thus making clear that the state board of education was ultimately subordinate to Montana’s Legislature.

Montana’s second constitution, adopted in 1972, removed this last provision and, instead, granted to the Board of Regents “full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system.” This language did not render the Board entirely autonomous, for the governor and Senate retain their role in selecting its members and MUS remains subject to the Legislature’s powers to appropriate funds and audit its finances. Less certain, though, was the question of whether the Legislature possesses the authority to enact statewide laws that override policies adopted by the board.

In a brief submitted on behalf of the state, Montana’s attorney general found the answer to this puzzle unproblematic. That brief, which describes HB 102 as a statewide health and safety law, states that “the Legislature has the constitutional authority to pass laws, including health and safety laws, under its police power.” Per the state’s argument, to hold that the board possesses the authority to disregard or violate a duly-enacted law merely because the regents find that law “disagreeable” is to place this body above the law and hence above the people’s elected representatives. In short, the state declared in another filing, the Legislature “does not forfeit its legislative power at the campus boundary line.” To read the constitution’s conferral of “full power” on the regents as an unlimited grant of sovereign authority, the state concluded, is to consider the board something akin to a “fourth branch of state government, that exercises both exclusive executive and legislative authority over the MUS.”

In its response, the Board of Regents argued that the principal purpose of Article X in the 1972 constitution is to insulate MUS’s governing body from political meddling, especially but not exclusively by the Legislature. If higher education is to fulfill its unique purpose, the Board of Regents cannot and must not be regarded as just another administrative agency (like the Department of Licensing, for example). Unlike such agencies, the board can fulfill its fiduciary obligation to the people of Montana only if it remains free to govern itself and hence to adopt any regulations it deems “necessary and proper” to secure its mission, including policies regulating firearms. Contrary to the attorney general, this is not to proclaim the Board of Regents a fourth branch of the state’s government, for this body asserts no authority beyond the boundaries of the MUS campuses. But it is to affirm that the board is a “constitutional entity” whose powers, when exercised on behalf of its designated end, cannot be abridged by the Legislature or executive.

In a unanimous decision, the state Supreme Court ruled that the sections of HB 102 that pertain specifically to the Montana University System are unconstitutional. The plenary character of the board’s powers, the court insisted, necessarily excludes others from exercising those same powers. This is not to render the board an autarkic sovereign. But it is to affirm that the board must retain its freedom to determine what is required to ensure a “safe and secure” campus, for that is an indispensable prerequisite of the academy’s distinctive work: “It is particularly germane and necessary to the Board’s constitutional authority that it can manage MUS campuses by implementing policies it believes will minimize the loss of life and thereby strengthen its educational environment” (emphasis added). Here, Montana’s highest court belabors what we might like to think goes without saying: dead students make poor learners.

Meanwhile, in Colorado …

The larger question posed by Board of Regents v. The State of Montana is one that is significant for public higher education in all 50 states, but especially those now dominated by the right wing of the Republican Party. Montana’s regents were able to successfully defend their campus gun policy only because the state constitution includes language that the Supreme Court, in this instance, interpreted as an affirmation of the board’s autonomy and hence its authority to defy the Legislature.

Not all states are equipped to do the same, because their constitutions, like that of Montana in 1889, grant their legislatures broad authority to define the powers of college and university governing boards. Consider, for example, Colorado’s constitution, which states, “The establishment, management, and abolition of the state institutions [of higher education] shall be subject to the control of the state, under the provisions of the constitution and such laws and regulations as the general assembly may provide” (emphasis added). True, Colorado’s constitution also provides that “the governing boards of the state institutions of higher education … shall have the general supervision of their respective institutions.” By statute, moreover, the General Assembly has authorized each board to “enact laws for the government of the university” and to “promulgate rules and regulations for the safety and welfare of students, employees, and property.” These grants of authority, though, are provisionally delegated by the Legislature and, for that reason, can be amplified, modified or eliminated by the people’s elected representatives.

This explains why the Weapons Control Policy adopted by the Colorado Board of Regents in 1994 failed to withstand legal challenge. As in Montana, that policy prohibited the carrying of firearms on campus by all persons other than certified officers. In 2003, however, the Legislature passed the Concealed Carry Act (CCA), which provided that anyone with a permit may “carry a concealed handgun in all areas of the state, except as specifically limited in this section.” Five years later, several students sued the regents on the ground that the board’s weapons policy violated the CCA and, in 2012, the state Supreme Court unanimously ruled that the board’s “supervisory” power must yield to the Legislature’s statutory authority: “We hold that the CCA’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus.”

That decided, the most the regents could do was to adopt a new policy that reiterates the board’s belief that “the possession of firearms, explosives, and other weapons on university premises compromises the safety of the university community” but is otherwise toothless. Unlike Montana, it would appear, the right to bear arms shall be preserved in Colorado even though a handful of students, faculty and/or staff (and possibly many more) will almost certainly be sacrificed to this cause.

What Price Victory, Dr. Faust?

The virtues of institutional autonomy, apparent in Montana but significantly qualified in Colorado, extend well beyond the authority to regulate firearms on campus. If autonomy is the capacity of colleges and universities to ward off outsiders bent on subordinating higher education to partisan purposes, then this property is a necessary condition of the academy’s ability to fulfill its unique mission. While we might quibble about the particulars, arguably, this capability encompasses the freedom to set broad institutional goals, to determine the specific allocation of funds appropriated by the state, to adjudicate matters of student discipline and employee misconduct, to modify academic programs, to establish standards for admission and graduation, to structure the academy’s internal governance, and more.

Less obvious, however, are the reasons why we might want to think twice before offering a full-throated celebration of the academy’s autonomy (and, by extension, the recent ruling in Montana). When autonomy is defined as the capacity to repel intruders, we are effectively encouraged to overlook the fact that the powers of self-governance within the American academy are structured in a very specific way. To champion the academy’s autonomy is not to affirm its democratic control. Rather, it is to ratify monopolization of the power to rule by governing boards who, legally speaking, are unaccountable to those they rule. Those who are ruled are in turn positioned as subjects of powers in which they have no legally mandated title to participate. When, for example, the Montana State University Faculty Senate signed on to an amicus brief that reinforced the regents’ claim to autonomy, that endorsement no doubt signified this body’s desire to liberate MUS from legislative intervention. Success on that front, however, does nothing to contest the conditions of the faculty’s subordination as employees bound by contract within the sort of hierarchically ordered constitution of power that is afforded graphic expression in university organizational charts.

Like their private counterparts, all public universities and colleges are granted certain legal powers by the state (for example, to grant degrees, to hold and alienate property, to employ a seal that testifies to the official status of documents, etc.). These powers are held not by specific persons, but by the creatures of law that are corporations. (In a few states, including Montana, state universities are not formally constituted as corporations but are nonetheless effectively constituted as such). The sole members of these sempiternal corporations are those who occupy seats on their governing boards at any given moment in time. All others affiliated with any given university, whether student, teacher or staff, are by definition excluded from membership within this incorporated body.

In this light, consider once more this provision in Montana’s constitution: “The government and control of the Montana university system is vested in a board of regents which shall have full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system.” On the regents’ account, this sentence “grants solely to the Board the right and the obligation to determine the best policies to ‘ensure the health and stability of the MUS’” (emphasis added), and hence denies to the Legislature any title to do the same. This passage can equally well be read, however, as a warrant for excluding everyone but the board from the exercise of the powers of self-governance within MUS: “Only one party,” the regents continue, “can have ‘full power’—otherwise, the power would not be full” (emphasis added). Sugarcoat this all you want, affirm the reality of “shared governance” if that brings you comfort, but the fact remains that the university constituted in corporate form is essentially and inherently autocratic. While Montana’s attorney general was perhaps guilty of rhetorical excess, he was not entirely wrong when, in his reply brief, he contended that on the regents’ construction “MUS is now something of a principality, divorced from the rest of the Montana body politic, and ungoverned by the State’s democratically elected leaders.”

If this representation is accurate, a nonobvious implication may also be true: the greater the autonomy enjoyed by any given governing board, especially when that freedom is constitutionally guaranteed, the more perfect is its capacity to rule autocratically. True, this capacity may not be fully realized at present in Montana or elsewhere. That said, the alarming trend toward rule by uniliteral “fiat,” to quote the American Association of University Professors, suggests that this reality may be closer than we care to admit. If the AAUP is right on this score, then our struggle to keep overbearing legislatures at bay must be accompanied by an equally vigorous campaign to challenge antidemocratic rule on the home front.