OREGON STATE BOARD OF HIGHER EDUCATION v. OREGON FIREARMS EDUCATIONAL FOUNDATION

DISPOSITION: Reversed in Favor of Oregon State Board of Higher Education

SUMMARY: The Oregon State Board of Higher Education may restrict firearms on university campuses.

JUDGES: Authored by Cindy Chang and Paige Joki, with whom Chief Justice Hanson Joins

In the Matter of

OREGON STATE BOARD OF HIGHER EDUCATION, Appellant v. OREGON FIREARMS EDUCATIONAL FOUNDATION, Respondent

THE HANSON SUPREME COURT

March 2, 2012, Filed

PRIOR HISTORY: Oregon Court of Appeals NO: A142974. Date Filed: September 28, 2011.

COUNSEL: For Appellants: Gabriel Cahn Walla Walla, WA.

For Respondents: Matthew D.C. Dittrich Walla Walla, WA.

I. Facts of the Case

In 1991, the Oregon State Board of Higher Education (OSBHE) adopted Oregon Administrative Rule (OAR) 580-022-0045(3), a policy allowing the Oregon University System to regulate and reprimand carriage of firearms on public college campuses. In January 2009, Jeff Maxwell was suspended from Western Oregon University for possessing a concealed weapon on the university’s campus. Later that year, the Oregon Firearm Educational Foundation petitioned the Court of Appeals in Oregon, arguing that (OAR) 580-022-0045(3) was preempted by ORS 166.170 (1), which prohibits “the authority to regulate in any matter whatsoever…the use of firearms” unless “expressly authorized by state statute” and which restricts any “county, city or other municipal corporation or district” from enacting “civil or criminal ordinances …to regulate, restrict or prohibit the…use of firearms,” unless it is “expressly authorized by state statue.” In September of 2011, the Oregon Court of Appeals decided that ORS 166.170 preempted (OAR) 580-022-0045(3). This case now comes to us on appeal on the issues of whether or not ORS 166.170 preempts (OAR) 580-022-0045(3) in this case, and whether or not the OSBHE legislature possesses the necessary authority to create administrative rules that restrict the use and possession of firearms on its property.

II. Argument

Under ORS 339.312 school districts are charged with the duty to “provide the safest school environment possible.” [1999 c.964 §2] This ability is uniquely hampered by the presence of firearms on campus. In two instances the Court has held that firearms on campus to can be subject to regulation, in order to maximize safety in Oregon’s schools. In Doe v. Medford School District, the Court held that schools do have the right to regulate firearms as dictated by ORS 339.312 . Again in, Starrett v. City of Portland (2004) the Court ruled that individual rights to carry firearms were superseded by property owners’ rights to decide whether or not firearms were allowed within the property’s borders. These two decisions indicate the prohibition of fire arms in legally sanctioned contexts are both consistent with the law and in furthering school safety objectives. Therefore, the Oregon University System is well within its legal jurisdiction to prohibit firearms on campus, as it has been explicitly called upon to ensure safe campus environments. There is no contravening legislation; current statutes do not explicitly prohibit the regulation of firearms on public school campuses. Indeed, ORS 166.170 (2) explicitly states that “except as expressly authorized by state statute, no county, city or other municipal corporation” can regulate firearms. Since the Oregon University system is none of these entities who are not allowed to regulate firearms, this Court reverses the original ruling in Oregon State Board of Higher Education and the Oregon University System v Oregon Firearms Educational Foundation. We hold that the University System can regulate firearms on school campuses within its jurisdiction.

A. Express Authorization indicates that the regulation of firearms is indeed within the jurisdiction of Oregon State Board of Education

The state Constitution of Oregon sets out strict parameters outlining the responsibility of the school districts under ORS 339.312 “to provide the safest school environment possible” [1999 c.964 §2.]. Prohibiting individuals from carrying firearms on campus, falls under this mandate. The ability to regulate firearms on campus is supported under ORS 166.170 which states that:

(1) Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition, is vested solely in the Legislative Assembly.

School districts have been given an express mandate to regulate firearms under ORS 339.312 as firearms do pose a danger to campus. In order to regulate firearms on campus, school districts are required to “adopt rules and bylaws for the government thereof, including the faculty, teachers, students and employees therein.” (brief for the appellant page 3) ORS 339.312 indicates that the conduct of individuals on campus can in fact be sanctioned for transgressing rules to assure the safety of the school. Thus, the suspension of Jeff Maxwell is within the jurisdiction of the school district. Under OAR 580-022-0045 (3) “any individual” who used or possessed firearms would be in violation of this rule; Mr. Maxwell meets this qualification.

The respondent contends that the school district is using ORS 339.312 to overreach its jurisdiction and unjustly limit Mr. Maxwell’s behavior. However, ORS 166.170 requires that entities only need to be expressly authorized, not explicitly authorized, to regulate the firearms in any capacity. Given the state’s interest and responsibility in providing the most secure educational environment for students, the threshold for an express mandate is met. The text of the law undermines the argument forwarded by the respondent, as the respondent’s case hinges on the premise that school districts are not explicitly authorized. While the law does not mention explicitly that schools can or cannot regulate firearms, previous mandates such as ORS 339.312 do indicate that schools have the ability to adopt and enforce rules that would augment school safety; thus, indicating that the Oregon State Board of Higher Education regulations did not conflict or attempt improperly to supersede OAR- 580-022-0045. Within the oral testimony of the Counsel for the Respondent, it became clear that this ruling not only held for this university in particular but all school systems in Oregon under the jurisdiction of the Oregon State Board of Higher Education. ORS 351.060 supports this line of reasoning, as it dictates that ‘all of the public universities or offices’ would be subject to firearm regulations and have the right to impose penalties for violation of rules. This Court disagrees with the respondent’s claim that only the legislative body may regulate firearms as the text of the law itself allows for exceptions to legislative actions via express mandates, indicating that in this case, legislative jurisdiction is superseded by the mandate given to the schools.

B. The Applicability of ORS 166.170

ORS 166.170 states that:

(1) “Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition, is vested solely in the Legislative Assembly.”

The respondents contend that because of this clause, the OSBHE does not have the authority to regulate firearms, as that authority is vested solely in the Legislative Assembly unless expressly authorized by state statute. However, the OSBHE has been expressly authorized by state statute passed by the legislature to regulate firearms under Chapter 351.011 of the Oregon Revised Statutes and under their burden to ensure a safe learning environment. Although the respondents state that “Oregon Revised Statute trumps laws and ordinances passed by lower legislative bodies,” and that all government entities are banned from regulating firearms under the Doe v. Medford School District decision, the actions of the OSBHE in enacting (OAR) 580-022-0045(3) and regulating firearms are still in compliance with ORS 166.170. The first section of ORS 166.170 does not prohibit the OSBHE from regulating firearms in this specific case, since the OSBHE was expressly authorized by state statute.

Furthermore, ORS 166.170 also states that:

(2) “Except as expressly authorized by state statute, no county, city or other municipal corporation or district may enact civil or criminal ordinances including but not limited to zoning ordinances, to regulate, restrict or prohibit the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition. Ordinances that are contrary to this subsection are void.” [1995 s.s. c.1 §1]

The OSBHE is not a county, city, or other municipal corporation or district. As defined by Chapter 351.011 of the Oregon Revised Statutes, “The Oregon University System is an instrumentality of the state and a government entity performing governmental functions and exercising governmental powers.” Because the OSBHE is an “instrumentality of the state” and a “government entity” and not any of the things listed specifically in ORS 166.170, they are allowed to enact rules, regulations, or civil or criminal ordinances for the possession of firearms on a university campus under the state statute (OAR) 580-022-0045(3). ORS 166.170 does not apply to the OSBHE here, nor does the language of ORS 166.170 preempt (OAR) 580-022-0045 in this case. If the state wishes to ban the OSBHE from enacting ordinances, they need to either add “instruments of the state” or “all government entities” or the OSBHE specifically to the list of entities banned from enacting civil or criminal ordinances into the language of ORS 166.170.

C. Legislative Intent

Although Judge Rosenblum argues in Oregon Firearm Educational Foundation v. Oregon Board of Higher Education, No. A14297 (2011) that (OAR) 580-022-0045(3) is the type of law ORS 166.170 is intended to preempt, we disagree with that finding. First, as described above, the OSBHE has been expressly authorized by state statute to regulate firearms, as they have a duty to ensure a safe environment on university grounds. Second, as the appellant mentions, in State v. Bordeaux, 220 Or App 165, the Court stated that, "we assume that the legislature did not intend an unreasonable result.” To disallow the regulation of firearms on university campuses would constitute an “unreasonable result,” as the safety of students, faculty, staff, and visitors would all be compromised. Guns represent a very realistic danger. As the appellant pointed out in his brief, from 2000 to 2009, over sixty people were killed on ten different college campuses from shootings (“Campus shootings: Since 2000, killings have occurred on 10 campuses.” Associated Press Interactive Timeline). In 2007, the deadly shooting at Virginia Tech killed 32 people and injured 25 others. (“Fact File: Deadliest Shootings in the US.” MSNBC, Sep. 15, 2008). Furthermore, the appellant cited a study conducted by Miller, Hemenway & Wechsler (2006), which observed that 4.3% of college students had a working firearm at college. ("Guns and Gun Threats at College." 2006 Press Releases. Journal of American College Health). When there are approximately 16 million students attending 4,200 colleges and universities in the United States, (“American College Health Association Campus Violence White Paper” Carr, J. L. (2005)) that is a significant number of students with firearms. As the appellant then concludes, “these empirical studies, combined with the generally recognized stresses of higher education, the rampant experimentation with illicit substances at such institutions, and the developmental prevalence to mental illness for college-aged people, make the application of ORS 166.170 to OAR 580-022-0045 (3) especially hard to fathom.” (Oregon State Board of Higher Education and Oregon University System v Oregon Firearms Educational Foundation, brief for appellants pg. 7)

Moreover, when the Court has addressed the intent of ORS 166.160 previously in Doe v. Medford School Dist., the Court concluded that,

“We have found nothing in that legislative history suggesting that the legislature intended the scope of its declaration of preemption in ORS 166.170(1) to reach more broadly to such things as internal employment policies and management directives.” (Doe v. Medford School Dist. 549C, 232 Or App 38, 221 P3d 787 (2009)

Seeing as how the OSBHE is precisely this type of management directive since they manage many different colleges and universities, it is clear that the intent of ORS 166.170 does not extend to it. The Court also stated that,

“The legislature was concerned about Oregon citizens traveling around the state through a ‘patchwork’ of inconsistent laws who were, perhaps unknowingly, violating local firearms restrictions.”

OAR) 580-022-0045(3) would not create a patchwork of inconsistent laws in any way, as citizens would plainly know that as long as they were on university campuses under the regulation of the OSBHE, their firearms are subject to regulation. That is clear, defined, and consistent, and would not contribute to the legislature’s concerns about a patchwork of inconsistent laws in any way. Therefore, (OAR) 580-022-0045(3) cannot have been the type of law that ORS. 166.170 was intended to preempt.

D. The Compelling Interest of School Safety Justifies the Regulation of Firearms on Campus

Empirics indicate that firearms have caused numerous outbreaks of violence on school campuses, according to an NPR timeline school shootings over the last few decades claimed 110 lives and injured many more people (Timeline: Shootings at US College Campuses, NPR report 2007). Furthermore, according to a study by Sloan, Fisher, and Cullen (1997) a mere 35% of violent crimes on college campuses were reported to authorities which indicates the need for heightened security measures. (College Violence http://youthviolence.edschool.virginia.edu/violence-in-schools/collegecampus.html) The potential for firearms on campus to cause the death, injury or dismemberment of students undermines the ability of the Oregon State Board of Education to provide the best possible education environment. Oral testimony also indicates that firearms being allowed on campus would be problematic, as even elementary schools would be safe havens for carrying weapons, which would be irresponsible and run counter intuitive to providing an environment within which students feel safe to learn.

Firearms on campus allow for students to use firepower as a way to threaten other students. As the appellant’s brief states, according to Miller, Hemenway & Wechsler (1999), students who are “threatened with firearms while at college tend to drink to excess [and] engage in aggressive and dangerous behavior after drinking,” which indicates that not only do firearms pose an immediate danger if they are discharged, but allows for the possibility for individuals to be psychologically traumatized by the threat of retaliatory injury or death caused by another individual’s firearm on campus. Miller, Hemenway & Wechsler (1999) also concluded that the systemic consequences of being threatened, and then acting, have been found to encourage other episodes of aggression on campus that too would disturb the safety and peace on campus. Oregon has promised that all Oregonians “peace, safety, and happiness” according to the State Constitution, which indicates that a legal framework is necessary to best uphold each of these rights. This Court finds that allowing unrestricted firearm possession and use on schools’ campuses does pose a substantial and unnecessary risk to individuals on campus. The appellant’s brief indicates that the “stresses of higher education, the rampant experimentation with illicit substances at such institutions, and the developmental prevalence to mental illness for college-aged people, make the application of ORS 166.170 to OAR 580-022-0045 (3) especially hard to fathom” and the Court concurs.

Oregon’s Constitution does state that “The people shall have the right to bear arms for the defense [sic] of themselves,” according to the respondent’s brief. No evidence has been introduced to the Court that individuals are in danger on campuses or that individuals need to carry firearms on campus to mitigate these threats. Schools are charged with taking measures to provide a safe environment; thus, they are required by law to provide an environment that doesn’t necessitate firearms. No evidence was introduced into the Court that failure of the school security mechanisms was occurring in the schools under the Oregon State Board of Higher Education’s jurisdiction. Furthermore, the Constitution of Oregon does allow for firearms to be regulated, which dictates that this ruling is not out of the ordinary in any respect. For example, the Lincoln County Sheriff’s office details a list of justifiable limitations on firearm possession such as in a court house, in a National Forrest, private businesses, or on indigenous land. (Concealed Handgun License http://www.lincolncountysheriff.net/handgun/) All of these exceptions indicate that regulation of “the people’s” firearms is justified by law.

E. Upholding The Oregon State Board of Higher Education’s ability to regulate firearms is consistent with this Court’s Previous Rulings

The Court has ruled in favor of school districts seeking firearm regulations. Doe v. Medford School Dist. 549C, 232 OR App 38, 221 P3d 787 (2009) explicitly addresses the concerns of the respondent; as according to the decision, the Court stated “We have found nothing in that legislative history suggesting that the legislature intended the scope of its declaration of preemption in ORS 166.170(1).” The appellant noted that this “has been the only time the Court really tackled the legislative history and intent of ORS 166.170,” which indicates that the charges of the school board superseding have already been resolved with other rulings.

The Court held in Starrett v. City of Portland (2004) that the “limits that the pertinent statutes place on a city's authority are limits on the authority to enact ordinances that regulate firearms;” thus, the appellant’s argument that the “rule in favor of preemption shows the Court’s prioritization of property rights as opposed to individual firearm rights” is well taken by this Court. Both of these rulings affirm exceptions to the legislative branch’s role in firearm regulation, indicating that the express mandate does in fact take precedence over any other legislative regulations. Both of these cases set a precedent that would resolve future conflict over which body is legally allowed to regulate firearms, as the law has jurisdictions that supersede cities’ and municipalities’ jurisdictions but not over mandates, which universities are obligated to comply with.

IV. CONCLUSION

We hold that the OSBHE was expressly authorized and given authority to regulate firearms, due to their duty to ensure a safe environment on university campuses, and that (OAR) 580-022-0045(3) is legal under ORS 166.170. Furthermore, upholding the Oregon State Board of Higher Education’s ability to regulate firearms is consistent with previous rulings. In Doe v. Medford School District, the Court found that ORS 166.170 did not preempt the school district’s policy preventing teachers from carrying concealed weapons at school. In Starrett v. City of Portland, it was decided that the nature of 166.170 did not extend to private property. We also find that as an “instrument of the state”, the OSBHE is not explicitly banned from enacting civil or criminal ordinances against firearms. Based on the Court’s statement about ORS 166.170 in State v. Bordeaux, 220 OR App 165 that "we assume that the legislature did not intend an unreasonable result,” we conclude that to prohibit a ban on firearms on university campuses would be unreasonable, as there is compelling evidence that universities must regulate firearms for safety purposes. (OAR) 580-022-0045(3) would also not create a “patchwork of inconsistent laws,” as was the legislature’s fear when they enacted ORS 166.170. Therefore, legislative intent does not support the preempting of (OAR) 580-022-0045(3) in this case. For the foregoing reasons, we reverse the decision of the Oregon Court of Appeals.