Could a Public University Segregate Those Who Exercise A Constitutional Right To A Separate Dormitory?

August 18th, 2012

Assume the right in question was the freedom of speech or freedom of religion. The answer would almost certainly be no.

Now, assume the right is the Second Amendment right to keep and bear arms. Could a public university force students who wish to exercise that right into separate, off-campus housing?

That is exactly what the University of Colorado at Boulder is doing.

The University of Colorado Boulder and University of Colorado at Colorado Springs are amending their student housing contracts, segregating students who possess a valid concealed weapons carry permit.

The university said Thursday that both campuses will establish a residential area for students over the age of 21 with a permit. In all other dormitories, guns will be banned, the new policy states.

“The main dorms on the main campus will not allow any concealed carry weapons,” CU Boulder spokesman Bronson Hilliard said. . . .

The university has been working on the policy since March when the Colorado Supreme Court upheld an appeals court ruling that struck down CU’s gun ban. The court said the Board of Regents overstepped its authority by refusing to allow permitted concealed weapons on campuses, in leased buildings and in any area under control of university police, officials said.

So students who wish to exercise this right are confronted with a choice:

Those with a permit may still live in dorms on both campuses, but may not have weapons in their possession in those general living quarters, officials said.

“They may store their gun with police,” said Deb Coffin, vice chancellor for student affairs for the Boulder campus.

Students at both campuses were informed via email about the change and what their options were should they choose to move to one of the dorms designated for weapons.

In Boulder, those who want to lawfully carry their gun must live in the family housing units downtown, Coffin said.

Now let’s unpack this a bit. One of the first objections you may raise is that the Supreme Court has not held that the right to carry a concealed weapon is protected by the Second Amendment. (Well, a more pressing point is that the CU regulation was struck down under the Colorado Constitution). But I’m not sure that it matters.

This regulation only governs where these students who want to keep a gun at home can live. Students who are licensed to carry a firearm–whether they live off campus, in the segregated housing, or wherever–are still treated equally on campus in the classrooms. A student with a valid concealed cary permit is allowed to carry a concealed carry permit in classrooms and other places. This regulation doesn’t have anything to do with carrying a concealed weapon.

What it does regulate, is where these permit-owners can live, and keep their guns at home. And keeping a firearm in the home is exactly what the Heller Court focused on. Keeping a lawfully registered firearm in the home is the sine qua non of Scalia’s opinion.

This policy would apply equally to someone who has a CCW, wants to keep a gun in his or her dorm, but not carry it. This is Heller.

What UC is doing here–segregating people based on their choice to keep a gun at home–seems to infringe on what the Court protected in Heller.

Let’s take a hypothetical. Assume the District of Columbia told Dick Heller that he could register and keep his gun at home, so long as he lived in a special zone designated for gun owners.

Now, of course, being assigned a dormitory is a very different scenario. Students are free to live anywhere they wish (though students who depend on financial aid and assisted living may be in a disadvantaged scenario here). They most likely aren’t being forced to live anywhere.

My objection, however, focuses on the University’s decision and criteria to assign housing in a manner penalizes students (by forcing them off campus) based on their decision to exercise a constitutional right.

There may be constitutional infirmities here.

H/T Think Progress

Update: In light of a great conversation in the comments with David and Steve, I find this blog post from Eugene Volokh from last year discussing bans on firearms in public housing. Here is a relevant execerpt:


This can’t be a sound argument, because it doesn’t explain why public housing projects are any different from private housing, where the right to keep and bear arms is indeed protected under the Michigan Constitution [and the Second Amendment]. After all, the right to bear arms is constitutionally protected even though the government has a legitimate interest in “maintaining a safe environment” for everyone, and there are few “environment[s] and circumstances” in which guns lose their dangerousness. . . .

More broadly, the government may sometimes refuse to allow the exercise of constitutional rights on its property, especially setting aside traditionally open places such as parks and sidewalks. It could, for instance, insist that abortions not be performed in government-owned hospitals. It could bar a wide range of speech in government buildings.Public housing might be treated specially, because it is a home as well as a government building, or because it is the sort of government benefit that is unusually important to those who use it. This has been the view of cases striking down at least certain kinds of speech restrictions and search and seizure policies in public housing. {E.g., Resident Action Council v. Seattle Hous. Auth., 174 P.3d 84 (Wash. 2008) (striking down ban on posting material on the outside of one’s public housing apartment door); Pratt v. Chicago Hous. Auth., 848 F. Supp. 792 (N.D. Ill. 1994) (holding that warrantless searches for guns in public housing units are likely unconstitutional, and silently assuming that the Fourth Amendment rules are the same in publicly owned housing as they are in other homes).} But still, while the Oregon Attorney General probably reached the right result in concluding that public housing authorities can’t require their tenants to surrender the right to bear arms, the unconstitutional conditions analysis in that opinion too categorically rejects the government-as-landlord claim, just as the Michigan opinion quoted above too categorically rejects the constitutional right claim.It’s not clear to me how other public property should be treated: Should the government be allowed to ban guns on government-owned recreational land, whether a city park or a national park, either by insisting that people who want to use the land must waive their right to bear arms, or by otherwise concluding that there is no right to bear arms in such places? As a condition of going onto a public university campus, which might have a considerable amount of open space and parking areas where crime is not uncommon?In public university dorm rooms, where one state attorney general’s opinion suggests gun possession is constitutionally protected? {See La. Op. Att’y Gen. No. 94-131 (1994) (suggesting that Second Amendment protects university student’s right to possess guns in dorm rooms).} As a condition of going onto a public primary or secondary school campus, or into a government office building, especially when this requires walking unarmed through a potentially dangerous parking structure? Courts need to work out a government-as-proprietor doctrine for the right to bear arms much as they have done for the freedom of speech.