Legislative meddlers

This legislative assembly has meddled a bit with colleges and universities. It has famously told all of them to allow guns on campus whether they want them or not.

It also holds under consideration a proposal to tell one of them that it shouldn’t have allowed a gay and lesbian student association to conduct a sex-education fair on the campus lawn a couple of weeks ago.

As it happens, it might be against the law for the Legislature to do those things.

Perhaps we can have litigation. Amendment 33 to the state Constitution is a 1940s-era voter-approved initiative ensuing amid outrage after then-Gov. Homer Adkins did away with the University of Arkansas Board of Trustees so he could get rid of J. William Fulbright as the university president.

The amendment says, “The board or commission of any institution, governed by this amendment, shall not be abolished nor shall the power vested in any such board or commission be transferred, unless the institution is abolished or consolidated with some other institution.”

The issue is “power vested in any such board or commission” and what that means.

Are the college and university boards of trustees in Arkansas vested with the power to determine whether students, faculty, staff and visitors may carry their concealed-license guns on the campuses that these boards of trustees are generally charged with overseeing?

As you surely know, HB1249 by Rep. Charlie Collins of Fayetteville was passed last week after the NRA dictated amendments to Collins. It presumes to declare by state law that concealed-carry licensees must be permitted to carry those licensed weapons on college campuses if they choose, provided they take eight hours of supplemental training.

Previous law, also resulting from a Collins bill, had said college boards of trustees could opt out and thus deny the weapons. Every college board in the state proceeded forthwith to opt out.

Attorney generals’ opinions issued in response to legislative requests over the years have been uncertain on the meaning and application of that phrase in Amendment 33—“powers vested.” That’s mainly because no lawsuit has been filed that produced a ruling that got to the bottom of the question.

The latest attorney general’s opinion, in 2002, was a scholarly hedge. It said the Legislature’s clear power to appropriate money, which extends to public colleges and universities, probably could not be used to redirect broad educational policies as set by a campus board of trustees.

But, in this case, HB1249 was not an appropriation bill, but a general policy bill.

The questions may be: Does the application to college campuses of state concealed-carry gun laws amount to a broad educational policy that infringes on the campuses’ constitutional authority? Or is that a matter of public safety that doesn’t affect educational autonomy and thus is not restricted by Amendment 33?

I’m thinking it’s general lawmaking well within the Legislature’s authority, but, then, I don’t currently possess a law license or judge’s robe.

The question might apply more directly to “Sex on the Lawn” at Arkansas Tech University in Russellville.

The gay and lesbian student association staged an exposition to provide information on safe sex. The promotional material listed Tech’s Department of Diversity and Inclusion, though that department was not a sponsor or fund-provider.

There was a photograph of the event that made the rounds. It showed the demonstration of certain devices—sex toys, some might say, but assistance devices for the disabled, organizers say.

A couple of state representatives, Mary Bentley of Perryville and Trevor Drown of Dover, took offense and overreacted. They proposed special budget language to do away altogether with Tech’s Department of Diversity and Inclusion or at least defund the main position in it.

May the Legislature, under Amendment 33, presume constitutionally to carve into a college’s spending so specifically as to abolish a studentoutreach office providing services that, the school administration says, conceivably could bear on accreditation?

The legislative overreaction was left hanging at the end of the week. That came after the Tech board met Wednesday and, while saying it would defend the students and the embattled department, passed a resolution saying any sponsorship by the department of a student activity would henceforth have to be run by the board for approval.

That surely amounts to an attempt at placation and compromise. It bought time, at least. But it, too, presents legal peril.

In the early ’80s the Student Senate at the University of Arkansas presumed to withhold from a gay and lesbian group certain student activity money delegated to its authority. The 8th U.S. District Court of Appeals said the UA couldn’t discriminate on that basis.

The best solution would be to let colleges run their own business; for legislators to concern themselves with broad state policy instead of sex; and for colleges to embrace sex-education fairs but perhaps discourage the photo-vulnerable display of any aforementioned devices.

John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers’ Hall of Fame in 2014. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.