Do Idaho’s Universities and State Board of Ed Respect Constitutional Rights?

Too often, the Idaho State Board of Education gets it wrong. The Idaho Statesman was recently debating whether the Board should be split to create a separate board of higher education. The Board has a history of trusting university officials blindly; this creates problems with distinguishing the responsibilities necessary to protect minors versus protecting constitutional rights of adults. This is not the only reason why most states have a separate Board of higher education. I do not know if splitting the State Board of Education is the correct solution, but better accountability is definitely needed.

To actually split the Idaho State Board of Education, would require publicly approved state constitutional amendment. The last attempt to seriously split the State Board of Education involved a personal bill from Senate Education Chairman Gary Schroeder. At that time, Senator Schroeder was outflanked by Blake Hall. (At that time, Mr. Hall was a lawyer, the Idaho Republican National Committeeman, and a member of the Idaho State Board of Education.) The current Board members, like previous Board members, might view a split of the State Board of Education as an assault on their power. In the end, proposing to split the State Board of Education probably “cost” Gary his job as the Senate Education Chairman, and potentially damaged his ability to stay elected as a state senator.

Using the right to self-defense as an example, in 2014, SB 1254 bill became law. Behind the scenes negotiations in the Senate led to an ultimatum to their House counterparts to “take it or leave it.” They chose to pass the flawed bill into law for many reasons. “Half a loaf” was better than none. It allowed some Constitutional rights to be restored that had been intentionally damaged. Our “politically correct” university administrators were intentionally lying, and our State Board of Education was turning a blind eye. Yes, it was an election year, and it did also put Governor Otter in a bind even though the bill became law. The original intention of SB 1254 was to introduce enhanced concealed carry into Idaho so that Idahoans would have better reciprocity rights in other states, but it became known as the “guns on campus” bill. Unfortunately for the State Board of Education and universities, their view is not consistent with the U.S. and Idaho Constitutions.

In SB 1254, there was a clause that essentially prevented lawsuits against our universities and the State Board of Education with regard to how they allow guns on campus, and this actually violates our 14th Amendment “due process” rights. This clause is now Idaho code 5-343. 18-3309 in Idaho Code expresses the limitations involving guns on campus. If you create, manage, or implement policy, you can be sued. The management of colleges and universities falls under contract law in most matters, with some exceptions where a federal, state, county, or city statute allows criminal law to override contract law. The State Board of Education is also the Board of Trustees for Idaho State University, Boise State University, Lewis and Clark State College, and the Board of Regents for University of Idaho. Our public community colleges have Boards of Trustees that are locally elected. Boards of regents and trustees provide oversight for colleges and universities equivalent to the Board of Directors for a private company; in other words, they have the power to override the Chief Executive Officer, the President of the college or university. This relationship is independent of a college or university being a state or state-supported entity. The Governor of Idaho and the Idaho Legislature could be sued in their official capacities if they do not correct this embarrassing oversight. This is one of many triggers that could lead to larger problems. What happens when university and college officials do not follow their own policies? What happens if the State Board of Education or a college administration chooses to ignore the unconstitutionality of a policy?

The Heller case expressed the individual Constitutional right to keep arms in a home for self-defense. The McDonald case expressed this as an incorporated right. State court decisions must be consistent with these, and future U.S. Federal and Supreme Court cases. The question is, what happens when the “home” or residence is located on government property, or is government subsidized, such as with public housing, or a public college residence? A dormitory housing commission is essentially a public housing authority. In these matters, the housing should be looked upon as a landlord-tenant matter. To do otherwise, the government would be acting “in loco parentis” and would effectively destroy the right to self-defense of a tenant, while the person was not on the government property. Since it is housing, it is no longer a “sensitive” area in the context of keeping “government buildings and schools” secure for the necessary functioning of government. The government should not require a citizen to waive a constitutional right in order to receive public services.

The first part of Article I, Section 11 of the Idaho Constitution reads “SECTION 11. RIGHT TO KEEP AND BEAR ARMS. The people have the right to keep and bear arms, which right shall not be abridged; …” The phrase “which right shall not be abridged” is extremely similar to the phrase “shall not be infringed” in the Second Amendment. The word “abridged” gives a clearer context to what has happened to college students seeking on-campus subsidized housing. Their rights were abridged. They would not have the same rights as anyone else in Idaho to own a weapon for self-defense, as is required by the Heller decision.

It is possible to regulate the use of firearms and other weapons without destroying the right on college campuses. To comply with this interpretation, the residential areas and common areas normally associated with residential use should have the same practices as the rest of the state that are not part of the campus. Since Idaho is an open carry state, this would require “open carry” in these residential areas of a campus. This requirement may be different for other states. This is also consistent with the Heller case; a regulation cannot be so onerous that it destroys the right. In other words, there are limitations on how much a regulation can cover. Hence, blanket bans and anything that would result in the same effect would be unconstitutional. Many for-profit colleges and universities do not provide for housing and do not wish to enter into these considerations. Online colleges are a special case of this. Being a landlord is not a necessary function of being a college or university.

In 2011, Aaron Tribble sued the State Board of Education in their capacity as the Board of Regents for the University of Idaho, over the matter of “keeping firearms in University of Idaho married student housing.” Mr. Tribble did not win his case. In fact, Judge Stegner wrote, “Mr. Tribble did not make his case.” Even though I agreed with Mr. Tribble’s position, Judge Stegner was correct, Mr. Tribble did not make his case. Mr. Tribble was a law student at the time of the lawsuit, and many of the court case precedents he needed were, and are still being developed to this very day. The case was not appealed. There are also some issues in the final arguments, suggesting the judge was leaning toward the University of Idaho’s case. The reader will see areas which were not addressed but need to be addressed to have a successful argument. It was not Judge Stegner’s job to make arguments for Mr. Tribble. The other reasons I agree with Mr. Tribble can be found in sections 2 and 3.

The Heller decision, a U.S. Supreme Court case, was full of historical references and showed how interpretations have changed over time, but the right to self-defense was never questioned. Logic may help answer the question of which constitutional right may take precedence over another right. For this argument, the hierarchy I would use is the 2nd Amendment, 1st Amendment, 14th Amendment, and the 4th Amendment. If you cannot defend your life (using the 2nd Amendment), then the right to petition for redress of grievances (using the 1st Amendment) is moot. Without “due process” (under the 14th Amendment), the redress of grievances could be made untenable. The implied right to privacy (under the 4th Amendment) limits government from spying on its people. These are measures to prevent tyrannical behavior from government and are consistent with the only duty of the people specified in the U.S. Declaration of Independence. That duty is to overturn a tyrannical government. I am advocating administrative, legislative, and legal actions, and not pitchforks, torches, and revolution. The concepts underlying self-defense, also underlie protection of a person’s property, and reputation as well. Please take notice that the 1st, 2nd, and 4th Amendments involve individual rights.

Mr. Tribble should have shown the relevant history of Idaho and the University of Idaho. In 1975, having a gun on campus was not an issue. Lieutenant Governor Brad Little used to do some bird hunting nearby the University of Idaho when he was a student up there around that time. In 1978, Idaho amended its Constitution involving the right to keep and bear arms by banning registration, restricting confiscation to felonies, and adding the word “keep.” My friends and I suspect that during the early 90’s under University of Idaho President Elizabeth Zinser that actual gun restrictions or banning started and the pattern was followed by the other higher education institutions in the state. Probably at this point in time, the University of Idaho shooting range was then restricted to use by the ROTC, and the occasional turkey shoot fundraiser. The University of Idaho shooting range was purposefully de-emphasized as part of the campus as well. This could have shown the desire to ban guns on campus is a more recent usurpation of power.

The wording of Idaho’s law back in 2014 could have been directly pulled from Heller’s decision. Idaho’s universities and colleges, just like most states, saw that regulation was allowed under the Heller decision. These institutions of higher learning purposefully ignored the part of the decision which prohibits destroying the right, by regulation. In other words, public Idaho higher education administrators reinterpreted the word “regulate” to mean “ban.” Furthermore the quotation “Laws preventing the carrying of firearms in sensitive buildings such as government buildings and schools” were and are still being abused.

All Idaho public university, and college weapons policies were collected and examined before SB 1254 was even written. For example, 18-3304D in Idaho code gives the local school board jurisdiction to makes decisions in grade schools, through high schools. One carve-out in this part of Idaho code allowed for someone to drop off a person at a school while still being able to possess a firearm. None of the university or college policies allowed this. This idea was explicitly written into SB 1254 to address that.

The parking situation to drop off someone was not the only problem seen in the college and university policies. The policies didn’t allow for exemptions. You could not have a knife or gun as a subject of a sample forensic examination or experiment. You could not bring in a ceremonial blade or a fake gun to a women’s self-defense group. You could not bring in a sword as an historical example of Damascus steel. You could not bring in swords to demonstrate material science concepts in metallurgy such as tempering, grain size, and Martensitic transitions. Even today, there are restrictions on what is considered a less-than-lethal weapon, such as mace, pepper spray, and tasers. To claim our public Idaho universities and colleges were not trying to outright ban all firearms and many other weapons, would be dishonest.

Gem State Patriot News