Legal Matters

Thirteen people were killed by guns at Columbine High School in Colorado, 26 at Sandy Hook Elementary School in Connecticut, 17 at Marjory Stoneman Douglas High School in Florida, and 10 at Santa Fe High School in Texas. There were 23 different school shootings in 2018, according to Education Week. School shootings have shocked our nation’s conscience, and principals are tasked with addressing related safety concerns in their schools. Let’s explore some of the legal and policy issues concerning schools and gun policies.

The Constitution and Federal Laws

In order to provide some context, let’s look at the relevant section of the U.S. Constitution and two federal laws. The Second Amendment, ratified in 1791, is at the center of the current debate concerning gun laws. The Second Amendment says “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” After the school shootings, there were calls to regulate assault weapons (e.g., AR-15) and to take other actions, which led to contentious arguments about the scope and meaning of the Second Amendment.

At the federal level, there have been two laws enacted that address guns in or near schools. In 1990, Congress enacted the Gun-Free School Zones Act (GFSZA), which made it a crime under federal law to knowingly possess a firearm within 1,000 feet of a school zone (public, private, or parochial). Concerns related to school violence and rising crime rates led to the passage of this law. The act was challenged, however, and the U.S. Supreme Court found it unconstitutional. The court ruled that the law exceeded Congress’ authority to regulate this type of activity (under the Commerce Clause), and in so doing, it overturned the conviction of a high school senior who brought a handgun to school. The law was later amended to apply only to guns that have either moved in or otherwise affected interstate commerce.

There are some exceptions to the GFSZA. The act allows guns to be permitted on school grounds for individuals who are licensed to possess guns. Additionally, this act allows firearms in school zones if the unloaded weapon is locked in a container or rack in a motor vehicle, if the weapon is used for a school program, or if the weapon used is part of a contract with the school and an individual (or an employer of the individual).

Congress made another attempt at protecting students in schools when it enacted the Gun-Free Schools Act in 1994 (later amended in 2002), which requires states to enact statutes mandating expulsion for students who possess a firearm on school grounds. Significantly, the act also allows states to grant authority to school officials to modify the expulsion of a particular student on a case-by-case basis. Since these acts were passed, there has been no major federal legislation enacted that directly addresses guns in schools. There are, unfortunately, few studies about which gun and safety policies work in schools, as the federal government refuses to fund new research related to gun violence.

Examining State Laws

Although the federal response has been slow, some states and school districts have addressed the issue of guns on campus. There are, however, inconsistencies among states’ gun-free school laws, such as concealed carry exceptions. Currently 40 states and Washington, D.C., extend their laws prohibiting guns at K–12 schools to include those who have concealed weapons permits. There are eight states that either allow concealed carry guns at K–12 schools or have no law prohibiting it. (See Giffords Law Center at https://lawcenter.giffords.org for a state-by-state overview.)

As a result of the inconsistency among these laws, the legal challenges are often very state-specific. To illustrate, in one recent case, the Michigan Supreme Court addressed whether two school districts could enact their own gun restrictions on campus. In Michigan, a state law prohibits cities, villages, townships, and counties from enacting weapon bans; the law does not explicitly include schools. Under the existing state law, someone with a concealed pistol permit could enter a school with an openly holstered gun. The Ann Arbor Public Schools and Clio Area School Districts enacted a policy that banned guns on campus (even those with concealed carry permits). There were exceptions for law enforcement. The Ann Arbor school district enacted its policy after a man openly carried a gun to his younger sister’s choir concert at the school. A different parent in the Ann Arbor district later filed a lawsuit alleging that the district’s policy conflicts with the state’s law.

In 2015, a trial court dismissed his lawsuit and found that the school district could prohibit dangerous weapons on school grounds; the Michigan Court of Appeals affirmed. The Michigan appellate court also upheld the Clio Area School District’s gun restriction policy. The appellate court found that school districts are not subject to existing state law that prohibits local units of government from enacting their own weapons bans. In July 2018, the state’s Supreme Court upheld these decisions. The majority did note, however, that the Michigan legislature can preempt school districts from enacting gun bans, but it has not done so at this time. Thus, although this case is related to gun rights and schools, it is more of a question about the division of power between a state and local school board. School officials would be wise to consult with their attorneys about the parameters permitted within their state’s laws to regulate guns on campus.

Considering Other Developments

It is not surprising that there have been multiple federal and state proposals addressing this issue, including those to arm teachers and to repeal gun-free school zones. President Donald Trump has called for some teachers to be armed in schools, and Secretary of Education Betsy DeVos is considering whether schools can use federal funds to buy guns. Those in support of such policies argue that our students are “sitting ducks” if teachers are not armed. Others contend that arming teachers is not good policy—even if they are properly trained. According to a RAND Corporation study that evaluated the New York Police Department over an eight-year period, the average “hit rate” for trained law enforcement during a gun fight was 18 percent.

Most recently, a special federal commission on school safety was created after the shootings at Marjory Stoneman Douglas High School. This commission was convened by Trump, and DeVos was appointed to lead the group. The commission has been tasked with quickly providing meaningful and actionable recommendations to keep students safe at school. These recommendations will address a variety of issues, including social-emotional support, suggestions on effective school safety infrastructure, discussion on minimum age for firearms purchases, and the impact that video games and the media have on violence. This committee will not focus on the role guns play in school violence. Bob Farrace, a spokesperson for NASSP, stated “[i]f the commission won’t address the role of guns in school violence, we hope that means it also won’t recommend a proliferation of guns in schools—arming teachers, eliminating gun-free school zones, and other ill-advised proposals that will make schools less safe” in a June 2018 article in The New York Times.

It will be important for school leaders to continue monitoring policy related to school safety stemming from the current administration. It is also imperative that school officials’ voices be heard at the federal, state, and local levels about these matters. Principals with firsthand experiences in schools should be informing these important legal and policy debates.


Suzanne E. Eckes, JD, PhD, is a professor at Indiana University. She is a co-author of  Principals Avoiding Lawsuits and the president of the Education Law Association. Benjamin Mueller, MEd, teaches ninth-grade computer science at Treasure Mountain Junior High School in Park City, UT.


References

Gifford Law Center (n.d.). Guns in schools. Retrieved from http://lawcenter.giffords.org/gun-laws/policy-areas/guns-in-public/guns-in-schools

Green, E. (June 5, 2018). Trump’s school safety commission, won’t look at guns Betsy DeVos says. The New York Times. Retrieved from www.nytimes.com/2018/06/05/us/politics/devos-guns-school-safety-commission.html

Mich. Gun Owners, Inc. v. Ann Arbor Pub. Sch., 2018 Mich. LEXIS 1568 (Mich. 2018).

Rawlings, N. (Sept. 16, 2013). Ready, fire, aim: The science behind police shooting bystanders. Time. Retrieved from nation.time.com/2013/09/16/ready-fire-aim-the-science-behind-police-shooting-bystanders

U.S. v. Lopez, 541 U.S. 549 (1995)