Education Under Fire?: an Analysis of Campus Carry and University Autonomy in Georgia

• Jurisdiction: Georgia,United States
• Citation: Vol. 54 No. 1
• Publication year: 2019

Education Under Fire?: An Analysis of Campus Carry and University Autonomy in Georgia

Brooke Anne Carrington

EDUCATION UNDER FIRE?: AN ANALYSIS OF CAMPUS CARRY AND UNIVERSITY AUTONOMY IN GEORGIA

Brooke Anne Carrington^*

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In 2017, Georgia's controversial campus carry bill was signed into law despite protest from the state's Board of Regents, university officials, and students. Georgia is one of ten states that has implemented campus carry. Georgia's campus carry statute is unique in that it may conflict with Georgia's Constitution, which vests the powers of "government, control, and management" of the University System of Georgia in the Board of Regents. Georgia courts have not yet addressed what this provision of the Constitution means. This Note applies general principles of constitutional interpretation to the provision.
This Note analyzes the framers' intent when drafting the provision in the 1940s and amending the provision in the 1980s. The history surrounding this constitutional provision is particularly informative because it was adopted after Governor Eugene Talmadge attempted to take over the university system in the 1940s. Some states have developed a university autonomy jurisprudence, which provides a preview of limits that a Georgia court may impose on the Board of Regents' powers. After analyzing the effects of the campus carry statutory scheme, this Note concludes that one portion of the statutory scheme conflicts with Georgia's Constitution, meaning the Board of Regents can implement further exceptions to campus carry.

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Table of Contents

I. Introduction..........................................................................389

II. Background..........................................................................392

A. CONTROVERSY SURROUNDING THE CONSTITUTION OF 1945 ............................................................................. 393
B. CONSTITUTION OF 1983.................................................. 395
C. GEORGIA CASE LAW........................................................ 396

III. Analysis...............................................................................397

A. TEXT...............................................................................398
B. INTENT OF THE FRAMERS................................................400
C. EFFECTS OF THE STATUTE IF HELD VALID.......................403
D. LIMITS ON UNIVERSITY AUTONOMY IN OTHER STATES .... 405

IV. Conclusion..........................................................................408

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I. Introduction

On May 4, 2017, Governor Nathan Deal signed the highly controversial campus carry bill into law, which mandates that public Georgia universities allow license holders to carry concealed handguns on college campuses.¹ The General Assembly considered similar legislation each year for five years prior.² The governor vetoed campus carry in 2016 after the Board of Regents (the Board), the presidents of twenty-nine universities, and campus police chiefs spoke out against the bill.³ When vetoing the legislation in 2016, Governor Deal stated, "[f]rom the early days of our nation and state, colleges have been treated as sanctuaries of learning where firearms have not been allowed. To depart from such time-honored protections should require overwhelming justification. I do not find that such justification exists."⁴

But, in 2017, state lawmakers again introduced campus carry legislation.⁵ This time, the drafters incorporated a limited number of exceptions.⁶ The governor then indicated that he would agree to sign the bill because these exceptions adequately addressed his previous concerns.⁷ Before Governor Deal officially signed the bill,

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students, faculty, the Board, and other university officials again spoke out against it.⁸ In addition, the majority of students and Georgia citizens disagreed with allowing guns on college campuses.⁹ Nevertheless, Governor Deal signed the bill, and his change in opinion from the previous year has been criticized as politically motivated and disconnected from concerns about students and the university system.¹⁰ Governor Deal rationalized his decision to sign the bill by citing safety concerns for students that may be traveling through dangerous areas off campus when commuting to and from universities.¹¹

Georgia is not the first state to enact campus carry legislation.¹² Due to the frequency of mass shootings, debate has swirled around whether to allow concealed carry on college campuses.¹³ Counting Georgia, ten states have passed legislation allowing concealed

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weapons on college campuses.¹⁴ Twenty-three states have left the decision of whether to allow concealed carry to universities, and sixteen states have passed legislation prohibiting concealed weapons on college campuses altogether.¹⁵

Georgia's campus carry law is unique in that it may conflict with Georgia's Constitution.¹⁶ Opponents of campus carry laws in other states have focused on possible claims under the United States Constitution.¹⁷ For example, professors in Texas filed a lawsuit against state government officials claiming that campus carry violated the First, Second, and Fourteenth Amendments, but their lawsuit has failed thus far.¹⁸ In contrast, in 2017, several Georgia professors filed suit against Governor Deal and the Georgia Attorney General, alleging that Georgia's campus carry statutes conflict with a provision in the state Constitution that delegates the government, management, and control of the university system to the Board.¹⁹ The Superior Court of Fulton County dismissed the professors' complaint on sovereign immunity and standing grounds without reaching the state constitutional issue.²⁰

This Note proceeds in three subsequent parts. Part II will explain Georgia's campus carry statutes and the constitutional provision at issue, discuss the history and political context surrounding the Constitutions of 1945 and 1983, and review Georgia case law. Part III of this Note argues that Georgia's Constitution gives the Board significant authority as an autonomous entity and that regulating firearms should be within that authority. Finally, Part IV concludes

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that Georgia's Constitution permits the Board to create additional exceptions to campus carry.

II. Background

Georgia's campus carry legislation has taken effect through a combination of statutes.²¹ O.C.G.A. § 16-11-127 criminalizes carrying guns into unauthorized locations, while O.C.G.A. § 16-11-127.1 establishes college campuses as an authorized location. Additionally, O.C.G.A. § 16-11-127.1 outlines exceptions where weapons are not authorized on college campuses, including student housing, athletic events, childcare centers, spaces used for high school instruction, faculty and administrative offices, and locations where disciplinary hearings are conducted.²² To carry a handgun on a college campus, the carrier must have a license and the handgun must be concealed.²³ O.C.G.A. § 16-11-173 states that "no . . . agency, board, . . . school district, or authority of this state, other than the General Assembly . . . shall regulate in any manner . . . [t]he possession, ownership, transport, [or] carrying . . . of firearms or other weapons." O.C.G.A. § 16-11-173 plays a central role in the campus carry scheme even though it was part of the Georgia Code before. This statute was not problematic until the passage of H.B. 280 because the Board and the General Assembly had historically agreed that guns should be prohibited on campuses.

On the other hand, Article VIII of the Georgia Constitution states, "[t]he government, control, and management of the university system of Georgia . . . shall be vested in the Board of Regents of the University System of Georgia."²⁴ This language was part of a statute originally enacted in 1931 and was then codified in the Georgia Constitution in 1945.²⁵ The language of the provision was later altered in the current Constitution that took force in

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1983.²⁶ Only approximately fifteen states give public universities autonomy under their Constitutions, with Michigan, California, and Minnesota giving the strongest form of autonomy to universities.²⁷

A. CONTROVERSY SURROUNDING THE CONSTITUTION OF 1945

Codifying the Board's powers into the Georgia Constitution came in response to Governor Eugene Talmadge's over-involvement in the university system, which ultimately resulted in the disaccreditation of Georgia's public universities.²⁸ In 1941, Talmadge accused Walter D. Cocking, Dean of the College of Education at the University of Georgia, and Marvin S. Pittman, President of the Georgia State Teachers College at Statesboro, of favoring racial integration, having communist views, and generally offending "southern principles."²⁹ He attempted to manipulate the Board into dismissing both administrators, but the Board members disobeyed him.³⁰ Talmadge then dismissed the Board members who disagreed with him and packed the Board with his supporters.³¹ With control of the Board, Talmadge fired any faculty member that he believed supported integration or communism, and he viewed professors from outside of Georgia as particularly suspect.³² He also threatened to purge books from university libraries that conveyed messages with which he disagreed.³³ His takeover culminated in a

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scandal when the Southern Association of Colleges and Secondary Schools (SACSS) decided to revoke accreditation from ten of Georgia's public universities.³⁴

Unsurprisingly, the accreditation of Georgia's universities became a major talking point during the election of 1942.³⁵ Ellis Arnall, Talmadge's main challenger during the primaries, announced his candidacy a matter of days before SACSS announced the withdrawal of accreditation.³⁶ He focused his campaign on restoring accreditation and insulating the Board from political influence.³⁷ Students across the state protested the disaccreditation and...