Guns at School - Should the Courts Get More Involved?
Justin Bathon on Sunday, January 17, 2010 at 10:13PM Kid goes hunting in the morning. Puts gun in truck. Drives truck to school. Authorities find it. Kid expelled. Lawsuit ensues. Community upset.
This is a pattern that gets repeated several times a year, especially in rural America. The latest one getting national press, as Scott M. passes along, is just north of Sacramento in Willows, CA. Pretty much the same story with the additional twists of the student parking off campus and the NRA getting involved to represent the kid (a pretty bold political move, but one that will sit well with most of rural America). Here is the student, his mother (and Fox) making their case.
Let me start this by saying I did this when I was a kid ... on at least a few occasions. Not intentionally. Not maliciously. I just didn't think about it and even if I had, I wouldn't have known it was that wrong to do (this was before I decided I needed to do something with my life, and thus, pay attention). Hunting and guns were part of our community. I shot my first gun when I was probably around 7 or 8 and I got my own gun around 14 (an 870 Remington pump action, which has served me well over the years, by the way). Anyway, suffice to say that if our Superintendent had conducted similar drug dog searches on any given day, at least 5-10 of my fellow classmates would have been in trouble - so, he overlooked it, intentionally.
Okay, that was pre-Columbine. Pre-Paducah. Before all of that group and thus before zero-tolerance policies really took hold. It was also before drug-dogs really became a weapon, before metal-detectors were widespread, and before school-resource officers were all over the place. It has only been about 15-20 years ago, but a lot has changed in those years.
So, I'm conflicted.
The easy post for me to write here is anti-NRA and pro-expulsion for this student. Nice and tidy, one policy for the whole U.S. or at least the whole state, error on the side of caution, and let's call it a day. On the other hand, it would be easy for me to argue that these urban-oriented policies are just another attack on rural America. To point out that kids used to leave their guns in the corner of the one-room schoolhouse. That this is very different than this. And, that kids like me who grew up with guns respected them more, and thus, I guess, wouldn't shoot people. A third easy argument is to argue for administrative discretion. That local administrators know the local needs and thus should set the local policy. If they don't, that is the whole point of school boards anyway, right?
All of these fail. What works in San Francisco doesn't necessarily work in Willows. 2010 is not 1910. And, I don't really know any serious educators that would totally trust school boards with this kind of decision.
So, I'm conflicted. But, I think rightly so because all of these arguments result in lives ruined. There are no good answers here. There are no clear lines and folks that argue there should be don't get the whole picture, in my view.
But, when there are no clear lines and no good answers, that's when our judicial system really steps up. It is these very tough issues where collective judicial action might navigate us though it in the least harmful way. So, I support the NRA lawsuit in so much as it causes us to consider these questions more deeply in each of these different contexts. To take 4-5 days and lay out the arguments and witnesses and experts. To consider it in California, in South Dakota, in Missouri, in Iowa, in Washington, in Pennsylvania, and everywhere else because 6 percent of students report carrying a weapon to school - a number not skewed by race, but a number historically higher, but dropping, for rural areas (although NCES needs to ask that question again).This kind of judicial intervention is going to cost us, of course. Judges are going to make some dumb decisions and we are going to spend a lot of tax-payer dollars that a strict zero-tolerance policy wouldn't require (although this law review makes a good case that we were spending them already anyway: 40 Tex. Tech L. Rev. 325).
But, I think judges should be more critical of these policies. More demanding of legislatures. I support the law being more complex, because the issue is currently more complex than the law allows. We have to remember that we are still new at regulating student behavior in this way. When my grandpa went to school literally in the one room schoolhouse, guns were permitted. When my dad went to school, guns were common. When I went to school, guns were overlooked and when my brother went to school, guns were banned. We have changed a lot over the years, perhaps for better. But those changes are not clean breaks and our national clean-break, zero-tolerance policy has resulted in a lot of ridiculous outcomes.
So, while I think the NRA is probably going to lose this case (and rightly so under our current law), I support them bringing it, even if just to make a statement and to force us to consider the questions more deeply.
Reader Comments (5)
I agree that this is an issue which needs to be discussed seriously, not merely subject to the "one strike and you're out" mentality. This goes for teachers and other school staff, as well. Why an unloaded gun - often in plain sight - should be considered grounds for dismissal (staff) or expulsion (student) is baffling.
Here in northern Maine, hunting - particularly in the fall - is the norm. Much as I disapprove unless others are given similar favored treatment for other recreational pursuits, I have known of a teacher (or two or three) being given time off because s/he got a moose hunting permit. Gun racks are commonplace. It is easy to forget that the gun is in the truck since it's there all the time.
Many items hold potential danger if not handled properly, so the question should become: was the gun stored safely? If the thoroughly-debated policy becomes "no guns at all", then there should be a warning process to remind individuals of the consequences.
Great post, Justin. As a guy who used to keep a hunting rifle in the gun rack of the pickup parked in the school lot, I have been conflicted about this issue since my own high school days. But as you say, times have changed since then, even in the rural communities where we both grew up. Largely due to the sensationalism of absolutists lilke the NRA, the gun culture has become much more dangerous than it was when we were kids. The thought of AK-47s and armor-piercing bullets in our gun safes would never have crossed our minds, but now these are the defining countours of the newly-defined individual right to bear arms. And this direction of the law is what worries me about this case.
The NRA is likely going to base its argument on one (or both) of two legal footings. For one, it could argue that either the Due Process Clause or the Cruel and Unusual Punishment Clause forbids this sort of one-size-fits-all punishment. I have always seen one of the points of Goss v. Lopez as the protection of the violator's right to argue for extenuating circumstances, and if this is correct, then the NRA should win because "zero tolerance" policies contain a predetermination that any and all extenuating circumstances are legally irrelevant, despite the right to a pre-expulsion hearing. As a teacher, I saw several good kids shipped off to "alternative education" programs (what we used to call "reform school") for carrying pocket knives and nail clippers as a result of these sorts of policies.
On the other hand (and I think more likely), the NRA could argue that an individual does not "shed" his individual right to bear arms at the schoolhouse door, and that a restriction like this one therefore has to be justified by strict scrutiny. The NRA has already had great success making a similar argument to state legislatures regarding the workplace, resulting in the fact that several states now prohibit employers from banning guns on the premises, as long as such guns are kept in a car. If the NRA succeeds at framing the issue this way, then it is doubtful that any "zero tolerance" policy would survive strict scrutiny. I fear that such a ruling might swing the pendulum too far the other way.
I find myself coming to the conclusion that, at some point, we have to expect our high school students (especially those we trust with automobiles, which kill far more people than guns each year) to know what is prohibited by the school rules and to respect that. This conclusion depends on the predicate (I think reasonable) assumption that the individual right to bear arms is weaker in the school context than it is outside it (like the right to free speech). Thus, due to the very real potential for "substantial disruption," schools should be able to ban guns anywhere on the premises, including inside locked cars.
However, we also have to be able to expect our administrators (at the school level, not the board level) to exercise administrative discretion in deciding whom to punish and how severely. Thus, even under my conclusion that the ban of guns is constitutionally sound, schools have a responsibility under the Due Process Clause to allow administrators to consider extenuating circumstances. No kid should be sent to alternative schools for having a kitchen knife on the car floorboard, left there after a weekend family move, and this kid in California ought to be able to prevail and avoid expulsion if he can show that leaving the gun in the car was inadvertent due to a lapse of judgment after an early-morning hunt.
Guns don't kill people. Courts kill people!
... and what about jurisdiction? If a school can police - or even weigh in on - what goes on in a car off school property, where does their jurisdiction end?
"The easy post for me to write here is anti-NRA and pro-expulsion for this student."
It's terrifying that an ed law thinker at a decent University could write such a line without considering the limits of a school's authority.
I didn't write that post, though, Matthew - and thus I did consider the limits of a school's authority.
You are right to be concerned that the school's reach is extending substantially - although I am not so sure that school's have not always had such reach and that is was just not formalized into law. In many country schools, the head teacher had somewhat limitless authority in terms of discipline, curriculum, etc. We just never put that into law because we didn't need to because we didn't have complex 2,000 student schools that we needed complex policies for.
So, to answer your question, the school's jurisdiction doesn't have a geographical limitation at all. On-campus, off-campus - that doesn't matter as much as the nature of the disruption caused by the behavior. Whether that's good or bad can be debated, but in the wake of all the school shootings, the country, especially the Right, were all too happy to not only let the school regulate beyond their borders, but they required it with stuff like anti-bullying laws, resource officers, etc. It's certainly a good issue to debate and I think one that we should keep exploring the limits of.
Thanks for the "decent University" plug. Coming from you, I appreciate the compliment Matthew.