University of Utah v. Shurtleff

2006 UT 51
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
University of Utah, a body 	No. 20030877
corporate and politic under Utah
law, and Michael K. Young,
President of the University of
Utah,
Plaintiffs and Appellees,
v.
Mark L. Shurtleff, Utah Attorney 	F I L E D
General,
Defendant and Appellant. 	September 8, 2006
---
Third District, Salt Lake
The Honorable Robert K. Hilder
No. 030910595
Attorneys: 	Alan L. Sullivan, Todd M. Shaughnessy, Amy F.
Sorenson, Salt Lake City, for plaintiffs
Mark L. Shurtleff, Att’y Gen., Brent A. Burnett,
Asst. Att’y Gen., Salt Lake City, for defendant
M. Gay Taylor, Robert H. Rees, Chris Parker, Salt
Lake City, for amicus State Legislature
---
PARRISH, Justice:
¶1 	For many years, the University of Utah has enforced a
policy prohibiting its students, faculty, and staff from
possessing firearms on campus. 	During its 2004 General Session,
the Utah Legislature passed Utah Code section 63-98-102, a
statute prohibiting state and local entities from enacting or
enforcing any ordinance, regulation, rule, or policy that in “any
way inhibits or restricts the possession or use of firearms on
either public or private property.” 	The conflict between the
University’s policy and section 63-98-102 requires that we assess
the relative authority of the University and the legislature to
regulate firearms on the University’s campus.

No. 20030877 	2
¶2 	Relying on article X, section 4 of the Utah
Constitution, the University maintains that it is an autonomous
constitutional entity with the authority to disregard Utah law
that interferes with its internal academic affairs and that
section 63-98-102 constitutes such a law. 	In contrast, the
Attorney General maintains that the University has no power or
autonomy under the constitution that would permit it to disregard
state law. 	We agree with the Attorney General. 	Indeed, the
University’s claim is unsupported by the text of our state’s
constitution, its historical context, or the prior decisions of
this court.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 	The University is a public university established by
Utah’s constitution and statutes. 	Over 44,000 students, faculty,
and staff comprise the University community. 	The main campus
includes not only the requisite classrooms and offices but also
an assortment of facilities ranging from an extensive health
sciences complex to a preschool. 	In addition, it includes
facilities frequented by guests of the University, such as a
46,000-seat football stadium, a 15,000-seat indoor arena, and
cultural and entertainment centers.
¶4 	Utah’s Enabling Act requires the University to “forever
remain under the exclusive control of” the State of Utah. 	Act of
July 16, 1894, ch. 138, 28 Stat. 107, 110. 	To that end, the Utah
Legislature created the Utah State Board of Regents, which has
authority to “enact regulations governing the conduct of
university and college students, faculty, and employees.” 	Utah
Code Ann. § 53B-3-103(1) (Supp. 2004). 	The board of regents has,
in turn, enacted regulations giving the University’s president
the responsibility to maintain a safe and orderly campus, as well
as the authority to issue policies aimed at ensuring the safety
and security of people and property on the University’s campus.
The legislature also has authorized the University’s president to
exercise authority delegated by the board of regents, as well as
other “necessary and proper . . . powers” not denied the
University “by the [board of regents] or by law,” to run the
University efficiently and effectively. 	Id. § 53B-2-106(1)
(2000). 	The University enforces its regulations pursuant to
those grants of power. 	Id. § 76-8-708(1) (2003).
¶5 	One of the regulations enacted by the University is a
firearms policy. 	The policy, which prohibits students, faculty,
and staff from carrying guns on campus and “while conducting
University business off campus,” authorizes disciplinary action
for violations. 	Numerous University administrative bodies

3 	No. 20030877
endorse the policy, and those responsible for campus safety view
it as a success.
¶6 	The University’s firearms policy became the subject of
heated debate in 2001, when Utah Attorney General Mark Shurtleff
issued Opinion No. 01-002, in which he opined that a Utah
Department of Human Resource Management rule forbidding state
employees to carry guns in state facilities violated Utah’s
Uniform Firearms Act. 	In footnote thirteen of that opinion, the
Attorney General expressed his agreement with the Office of
Legislative Research and General Counsel’s Formal Opinion 98-01,
which had concluded that the University’s firearms policy was
contrary to the Uniform Firearms Act. 	After issuing Opinion
No. 01-002, the Attorney General reiterated on numerous occasions
his view regarding the illegality of the University’s firearms
policy.
¶7 	In response, the University sued the Attorney General
in the United States District Court for the District of Utah
(“federal court”), seeking a declaration that Utah law does not
prevent it from enforcing its firearms policy and that any
interference with the policy would violate its right to academic
freedom as guaranteed by the First and Fourteenth Amendments to
the United States Constitution. 	The Attorney General moved for
judgment on the pleadings. 	The University, in turn, moved for
summary judgment.
¶8 	Because the Eleventh Amendment to the United States
Constitution immunizes the Attorney General from suits under
state law in federal court, the federal court found that it
lacked jurisdiction to decide the University’s state law claims
and dismissed them without prejudice. 	It also invoked the
federal Pullman abstention doctrine, declining to consider the
University’s federal constitutional claims until a court with
proper jurisdiction decided the University’s state law claims.
See R.R. Comm’n v. Pullman Co., 312 U.S. 496 (1941). 	The federal
court directed the University to seek adjudication of its state
law claims in state court and, pursuant to Pullman, retained
jurisdiction over the federal claims.
¶9 	The University then sued the Attorney General in Utah
state court, seeking a declaration that its firearms policy was
contrary to neither the Uniform Firearms Act, id. §§ 76-10-500 to
-530 (2003), nor the Concealed Weapon Act, Utah Code Ann.
§§ 53-5-701 to -711 (2002). 	In the alternative, the University
sought a declaration that article X, section 4 of the Utah
Constitution guaranteed it institutional autonomy over firearms
regulation, thereby allowing it to continue to enforce its

1 The Attorney General also argued that several other
statutory provisions invalidated the University’s firearms
policy. 	First, he relied on Utah Code section 78-27-64, which
reserves to the legislature the power to regulate firearms. 	Utah
Code Ann. § 78-27-64 (2002). 	Second, he argued that Utah Code
section 53B-3-103 prohibits the University from “restrict[ing]
the lawful possession or carrying of firearms.” 	Utah Code Ann.
§ 53B-3-103(2)(a)(ii) (Supp. 2004). 	Finally, he argued that
because Senate Bill 170, passed during the 2002 legislative
session, declined to reauthorize the University’s firearms
policy, the policy was invalid. 	See Reauthorization of
Administrative Rules, ch. 325, 2002 Utah Laws 1572, 1572. 	The
district court rejected all of these claims as well.
No. 20030877 	4
firearms policy in spite of any contrary Utah law. 	The Attorney
General moved to dismiss the University’s suit, and the
University countered with a motion for summary judgment.
¶10 	The district court denied the Attorney General’s motion
to dismiss and granted the University’s motion for summary
judgment, holding that the University’s firearms policy was not
contrary to Utah law. 	The court reasoned that the Uniform
Firearms Act merely “established uniform criminal penalties for”
those who violated Utah’s firearms laws and that the Concealed
Weapon Act merely “addressed the validity of a concealed weapons
permit, the circumstances under which one must be issued, and the
circumstances under which a valid permit holder may nevertheless
be subject to criminal prosecution for possession of a concealed
weapon.” 	It concluded that the University’s firearms policy was
not inconsistent with either of these statutes because the policy
applied only to students, faculty, and staff who voluntarily
chose to associate themselves with the University. 1 	The district
court’s conclusion that the University’s firearms policy was
consistent with Utah statutory law obviated the need for it to
address the University’s claimed right to institutional autonomy
under article X, section 4 of the Utah Constitution.
¶11 	The Attorney General appealed. 	Shortly after he filed
his initial brief, the legislature passed Senate Bill 48, later
codified at sections 63-98-101 to -102 of the Utah Code. 	See id.
§§ 63-98-101 to -102 (2004). 	Section 63-98-102 provides, “Unless
specifically authorized by the Legislature by statute, a local
authority or state entity may not enact, establish, or enforce
any ordinance, regulation, rule, or policy pertaining to firearms
that in any way inhibits or restricts the possession or use of
firearms on either public or private property.” 	Id.
§ 63-98-102(5). 	The statutory definition of the phrase “[l]ocal
authority or state entity” includes “state institutions of higher

5 	No. 20030877
education,” such as the University. 	Id. § 63-98-102(6)(b). 	The
passage of section 63-98-102 dramatically altered the legal
landscape, rendering it clear that Utah’s firearms statutes are
universally applicable, rather than merely criminal in nature as
the district court had concluded, and that the University’s
firearms policy does, in fact, violate Utah law.
¶12 	Because the enactment of section 63-98-102 conclusively
resolved the statutory interpretation issue in a manner contrary
to the holding of the district court, both the University and the
Attorney General suggested that the district court’s decision on
that point had been rendered moot, obviating the need for this
court to review that issue. 	The parties further suggested that
the University’s constitutional claim, which the district court
had not reached, was ripe for adjudication and should be
addressed by this court. 	We agreed and directed the parties to
proceed with briefing on the constitutional issue.
¶13 	The University contends that section 63-98-102 is
unconstitutional as applied to the University because the
University enjoys institutional autonomy under article X, section
4 of the Utah Constitution. 	Consistent with that theory, the
parties restricted their briefing in this court to the scope of
the University’s autonomy under article X, section 4 of the Utah
Constitution.
¶14 	During oral argument, we inquired as to whether article
I, section 6 of the Utah Constitution was relevant to the
University’s claim of institutional autonomy under article X,
section 4. 	Article I, section 6 provides, “The individual right
of the people to keep and bear arms for security and defense of
self, family, others, property, or the state, as well as for
other lawful purposes shall not be infringed; but nothing herein
shall prevent the legislature from defining the lawful use of
arms.” 	Following oral argument, we ordered the parties to submit
supplemental briefs on the following question: 	“Assuming for
purposes of argument that Article X, Section 4 of the Utah
Constitution guarantees the University of Utah some degree of
institutional autonomy, does Article I, Section 6 remove gun
regulation from the scope of that autonomy?” 	We also invited the
Utah Legislature to weigh in as amicus curiae, an invitation it
accepted.
¶15 	Before turning to the merits of the University’s
constitutional claim, we pause to discuss the applicable standard
of review. 	This case is before us on appeal from the district
court’s entry of summary judgment in favor of the University.
However, the enactment of section 63-98-102 subsequent to the

No. 20030877 	6
district court’s decision mooted the statutory basis for the
summary judgment, requiring that we address the constitutional
issue that the district court did not reach. 	The fact that we
are being asked to “review” an issue not addressed below renders
this case somewhat unique, but does not require us to depart from
the standard of review applicable to cases decided on summary
judgment. 	When material facts are not in dispute, we focus
solely on the legal basis for the district court’s ruling, which
we review de novo. 	Similarly, we review de novo a district
court’s interpretation of constitutional provisions, granting it
no deference. 	Provo City v. Ivie, 2004 UT 30, ¶ 7, 94 P.3d 206.
It is accordingly immaterial that the district court did not
reach the constitutional issue presented here because we would
apply a de novo standard of review in any event.
ANALYSIS
¶16 	We begin by addressing the additional question we asked
the parties to brief, namely, whether article I, section 6 of the
Utah Constitution informs our interpretation of article X,
section 4. 	Because we conclude that it does not, we then address
the University’s claim that article X, section 4 of the Utah
Constitution grants it institutional autonomy, thereby allowing
it to promulgate its firearms policy despite contrary Utah law.
We also briefly address any role that policy concerns may play in
this discussion.
I. 	THE APPLICABILITY OF ARTICLE I, SECTION 6
OF THE UTAH CONSTITUTION
¶17 	After oral argument, we asked the parties to supplement
their briefing to address whether article I, section 6 of the
Utah Constitution bears on this case. 	Although article I,
section 6 is the provision of the Utah Constitution that
explicitly governs firearms regulation, the parties did not
address it in their initial briefs. 	When interpreting the
constitution, we strive to harmonize constitutional provisions
with one another and with the meaning and function of the
constitution as a whole. 	See Skeen v. Craig, 86 P. 487, 488
(Utah 1906). 	We therefore considered it prudent to have the
parties address the applicability of article I, section 6.
¶18 	At the time of statehood, the State of Utah “committed
its whole lawmaking power to the legislature, excepting such as
is expressly or impliedly withheld by the state or federal
constitution.” 	Utah Sch. Bds. Ass’n v. Utah State Bd. of Educ.,
2001 UT 2, ¶ 11, 17 P.3d 1125 (internal quotation marks omitted);
see also Utah Const. art. VI, § 1 (vesting the state’s

2 Although the Utah legislature possesses plenary lawmaking
authority except as limited by the state and federal
constitutions, numerous cases have referred to the legislature’s
“article I, section 6 power” to regulate firearms. 	See, e.g.,
State v. Willis, 2004 UT 93, ¶ 16, 100 P.3d 1218 (“[W]e interpret
the grant of authority to the legislature to regulate the lawful
‘use’ of arms in article I, section 6 of the Utah Constitution to
include the ability to restrict convicted felons from possessing
firearms.” (emphasis added)); Hansen v. Am. Online, Inc., 2004 UT
62, ¶ 14, 96 P.3d 950 (“The legislature has exercised its article
I, section 6 power to enact numerous statutes defining the scope
of the lawful use and possession of firearms.” (emphasis added));
State v. Vlacil, 645 P.2d 677, 683 (Utah 1982) (Stewart, J.,
concurring) (“It is conceded by all that the State has the power
under Article I, § 6 of the Utah Constitution to enact reasonable
regulations for the control of firearms.” (emphasis added));
State v. Beorchia, 530 P.2d 813, 814 (Utah 1974) (noting that,
under the pre-1984 version of article I, section 6, it was “quite
evident . . . that the Legislature had sufficient power to enact
the statute in question” (emphasis added)). 	In fact, the
legislative power to regulate firearms arises from article VI,
section 1 of the Utah Constitution, which vests in the
legislature the “Legislative power of the State.” 	See Utah Sch.
Bds. Ass’n, 2001 UT 2, ¶ 11; Utah Const. art. VI, § 1. 	The
second sentence of article I, section 6, which states that
“nothing herein shall prevent the legislature from defining the
lawful use of arms,” is therefore more accurately viewed as a
limitation on the people’s right to “keep and bear arms.”
7 	No. 20030877
legislative power in the legislature and “[i]n the people of the
State of Utah”). 	Indeed, “[t]he Utah Constitution is not one of
grant, but one of limitation.” 	Utah Sch. Bds. Ass’n, 2001 UT 2,
¶ 11. 	Article I, section 6 of the Utah Constitution is such a
limitation inasmuch as it limits the legislature’s authority to
infringe the “individual right of the people to keep and bear
arms.” 2
¶19 	When we interpret constitutional provisions, “our
starting point . . . is the textual language itself.” 	Grand
County v. Emery County, 2002 UT 57, ¶ 29, 52 P.3d 1148. 	The
first clause of article I, section 6 reads: 	“The individual
right of the people to keep and bear arms for security and
defense of self, family, others, property, or the state, as well
as for other lawful purposes shall not be infringed . . . .”
Utah Const. art. I, § 6. 	This clause clearly recognizes “[t]he
individual right of the people to keep and bear arms” and
explicitly forecloses the state’s ability to “infringe” on that
right. 	Id. 	Put differently, even though the legislature

No. 20030877 	8
possesses the state’s “whole lawmaking power,” Utah Sch. Bds.
Ass’n, 2002 UT 2, ¶ 11 (internal quotation marks omitted), it
cannot use that power to infringe on the individual right to
“keep and bear arms.” 	Utah Const. art. I, § 6.
¶20 	The second clause of article I, section 6, however,
places a limit on that restriction. 	It provides that “nothing
herein shall prevent the legislature from defining the lawful use
of arms.” 	Utah Const. art. I, § 6. 	In other words, while the
legislature cannot “infringe” on the individual right to “keep
and bear arms,” it may “defin[e] the lawful use of arms.” 	Id.
By definition, then, a legislative act defining the lawful use of
arms does not “infringe” upon the individual right to bear arms.
The distinction between defining and infringing is borne out in
numerous cases upholding legislative acts that ostensibly burden
the right to bear arms. 	See, e.g., State v. Willis, 2004 UT 93,
¶ 16, 100 P.3d 1218 (interpreting article I, section 6 to permit
“restrict[ing] convicted felons from possessing firearms”); State
v. Wacek, 703 P.2d 296, 298 (Utah 1985) (noting that a similarly
structured, earlier version of article I, section 6 did not
mandate reversal of a defendant’s conviction for a firearms
offense); State v. Beorchia, 530 P.2d 813, 814 (Utah 1974)
(same).
¶21 	Because the state’s “whole lawmaking power” is vested
in the legislature, Utah Sch. Bds. Ass’n, 2001 UT 2, ¶ 11, only
the legislature may “defin[e] the lawful use of arms” unless it
delegates that power to another governmental entity. 	The
enactment of section 63-98-102 renders it absolutely clear that
the legislature has chosen not to delegate any of its lawmaking
power in regard to firearms. 	Therefore, to the extent that the
University’s firearms policy constitutes an attempt to “defin[e]
the lawful use of arms,” the policy would contravene article I,
section 6 of the Utah Constitution, which reserves that authority
exclusively to the legislature. 	We conclude, however, that the
University’s firearms policy does not constitute such an attempt
because it is not legislative in nature.
¶22 	The legislature’s power to “defin[e] the lawful use of
arms” must necessarily be exercised through its lawmaking power
because the legislature has no other constitutional authority to
define suggested firearm use. 	Indeed, its only mechanism for
“defining the lawful use of arms” is through legislative
enactment.
¶23 	While this principle may seem almost tautological, it
has great importance here because it establishes the legislature
as the only entity with authority to enact legislation defining

3 The authorities that seek to define a legislative act have
tended to do so in order to distinguish such an act from an
adjudicative act, see, e.g., V-1 Oil Co. v. Dep’t of Envtl.
Quality, 939 P.2d 1192, 1196 (Utah 1997), or an administrative
act, see, e.g., Citizens’ Awareness Now v. Marakis, 873 P.2d
1117, 1125 (Utah 1994). 	Such distinctions are of limited use
here.
4 For purposes of this case, the letter by University
Interim President McIntyre “extending the prohibition on the
(continued...)
9 	No. 20030877
the “lawful use of arms.” 	We must therefore determine whether
the University’s adoption of its firearms policy is legislative
in nature. 	We conclude that it is not.
¶24 	To determine whether an internal policy rises to the
level of legislation, we must take into account the nature of the
institution establishing the policy and its relationship to the
class of persons affected by it, as well as the legal effect of
the policy’s violation. 	Because the precise distinction between
a legislative act and a mere policy is a matter of first
impression in this court, 3 we begin by examining the
characteristics of those actions that are indisputably
legislative in nature.
¶25 	When a legislative body, whether of the state or of a
local government, enacts a statute or an ordinance, that law
applies to everyone within the geographical area over which that
body has jurisdiction. 	When an administrative agency promulgates
a regulation in accord with the legislative power delegated to it
by the state legislature, the regulation applies to everyone over
whom the agency has jurisdiction by virtue of their involvement
in a particular endeavor that the state has authority to
regulate. 	These actions may be deemed legislative because they
rely on the lawmaking body’s jurisdictional authority over a
geographical area or a category of persons engaged in a
particular activity. 	The legal effect of violating such a
legislative act may range from the imposition of criminal
penalties to the withholding of government rights or benefits to
which persons would otherwise be entitled.
¶26 	As a corporate entity engaged in the enterprise of
higher education, the University is distinct from an
administrative agency that may exert authority over an entire
industry or occupation. 	Indeed, the University’s firearms policy
appears in the University’s personnel policies and in its code of
student conduct. 4 	The policy does not purport to apply to the

4 (...continued)
possession or use on campus of any firearm . . . to all
University employees, including faculty,” is the equivalent of a
personnel policy.
5 When the basis of a public institution’s authority over
others is its property ownership, rather than a contractual or
quasi-contractual relationship, the question of whether a policy
is legislative becomes more difficult. 	For example, in contrast
to the University’s employment policy and student code, the
University’s parking and traffic rules do apply to everyone who
enters University premises in a vehicle. 	See University Policy
2-28(III)(C) (indicating that “[c]ampus parking regulations shall
be set forth in a pamphlet, available at the Office of Parking
Service” and “shall apply to all campus lands except those leased
to nonuniversity entities”); see also Utah Code Ann.
§ 53B-3-103(2)(a)(i) (authorizing the board of regents to
authorize the University to “enact traffic, parking, and related
regulations governing all individuals on campuses and other
facilities owned or controlled by the [University]”). 	We express
no opinion on whether such rules might be deemed legislative in
nature.
No. 20030877 	10
population at large or even to the entire category of higher
education students or staff, but only to those students enrolled
at and those faculty and staff employed by the University itself.
And the policy applies only to these individuals because of their
contractual or quasi-contractual relationships with the
University, not because the University has jurisdiction over a
particular geographic area or a particular field of endeavor. 5
See Piacitelli v. S. Utah State Coll., 636 P.2d 1063, 1066 (Utah
1981) (holding that the school’s policy manual created only a
“contractual obligation” and did not create “statutory or
constitutional rights”); Logan City Sch. Dist. v. Kowallis, 77
P.2d 348, 354 (Utah 1938) (indicating that children are admitted
to public schools outside of their home districts under a
contractual right).
¶27 	With regard to its legal effect, the policy indicates
that the University may undertake “disciplinary action” against a
student or an employee who violates it. 	This may result in a
student’s “written reprimand, the imposition of a fine or payment
of restitution, community service, probation, suspension, or
dismissal from the University” or an employee’s “written
reprimand, written warning, disciplinary suspension without pay,
demotion, dismissal for cause, or other action deemed appropriate
by the supervisor.” 	Most of these actions involve placing a
burden on the violating party’s relationship with the University,

11 	No. 20030877
and the harshest of them involve severing that relationship.
Although a fine may be imposed on students, the policy does not
indicate any mechanism for enforcing such a fine other than the
threat of withholding student records or other such disciplinary
action. 	A private institution would be equally able to impose
these types of penalties because the power to impose them derives
from the contractual or quasi-contractual relationship between
the institution and the violating party, not from the
institution’s governmental status. 	See Jones v. Vassar Coll.,
299 N.Y.S.2d 283, 286 (Sup. Ct. 1969) (recognizing the
“contractual relationship between the student and the college
which is subject to the rules and regulations of the college”).
In other words, it is only because there exists such a
relationship that the institution has the ability to punish the
violation of its policy.
¶28 	We conclude that the University’s firearms policy is
most appropriately viewed as a contract with its students and
employees. 	It is therefore not legislative in nature. 	Because
the policy is not legislative in nature, its adoption by the
University did not violate the constitutional directive that only
the legislature shall “defin[e] the lawful use of arms.” 	Utah
Const. art. I, § 6. 	We therefore conclude that article I,
section 6 does not bear on the validity of the University’s
firearms policy.
II. 	THE UNIVERSITY’S CLAIM TO INSTITUTIONAL AUTONOMY
UNDER ARTICLE X, SECTION 4 OF THE UTAH CONSTITUTION
¶29 	Having concluded that article I, section 6 of the Utah
Constitution does not bear on the validity of the University’s
firearms policy, we turn to the University’s claim that Utah Code
section 63-98-102 is an unconstitutional infringement of its
right to institutional autonomy guaranteed by article X, section
4 of the Utah Constitution. 	For the reasons discussed below, we
reject the University’s claim.
¶30 	The cardinal rule of constitutional interpretation is
to begin with the plain language of the provision in question.
Grand County v. Emery County, 2002 UT 57, ¶ 29, 52 P.3d 1148;
Utah Sch. Bds. Ass’n v. Utah State Bd. of Educ., 2001 UT 2, ¶ 13,
17 P.3d 1125. 	In this regard, we attempt to employ an
“objective” analysis, State v. Smith, 2005 UT 57, ¶ 11, 122 P.3d
57, and avoid examining the language in “isolation.” 	Estate of
Berkemeir v. Hartford Ins. Co., 2004 UT 104, ¶ 13, 106 P.3d 700.
When confronted with potential conflicts between constitutional
provisions, we construe them in a manner to harmonize them with
one another. 	Skeen v. Craig, 86 P. 487, 488 (Utah 1906). 	And

No. 20030877 	12
when confronted with a constitutional challenge to a statute, we
presume the statute to be constitutional, resolving any
reasonable doubts in favor of constitutionality. 	Utah Sch. Bds.
Ass’n, 2001 UT 2, ¶ 9. 	To determine the scope of the
University’s right to institutional autonomy under article X,
section 4, we therefore begin with its plain language, keeping in
mind the general constitutional structure in which it appears.
¶31 	As previously discussed, the Utah Constitution
“committed [the state’s] whole law-making power to the
Legislature,” and the legislature’s “authority is absolute and
unlimited, except by the express restrictions of the fundamental
law.” 	Kimball v. Grantsville City, 57 P. 1, 4-5 (Utah 1899). 	We
accordingly presume that the legislature possesses plenary
authority to regulate the University unless a constitutional
provision provides to the contrary. 	Univ. of Utah v. Bd. of
Exam’rs, 295 P.2d 348, 360 (Utah 1956) (indicating that “in order
that the legislative body be restricted in educational as well as
all other matters, it is imperative that the Legislature be
restricted expressly or by necessary implication by the
Constitution itself”).
¶32 	With these general principles in mind, we turn to the
text of article X, section 4, the constitutional provision
governing higher education, to determine whether it limits the
legislature’s power over the University. 	It provides:
The general control and supervision of the
higher education system shall be provided for
by statute. 	All rights, immunities,
franchises, and endowments originally
established or recognized by the constitution
for any public university or college are
confirmed.
Utah Const. art. X, § 4.
¶33 	Nothing in the first sentence of this section could be
read to limit the legislature’s right of control over the
University. 	To the contrary, the phrase explicitly confirms the
legislature’s right to “general control and supervision of the
higher education system” through its lawmaking power. 	Absent any
restrictive language, the legislature may supervise and generally
control all University functions.
¶34 	The basis for the University’s claimed right of
institutional autonomy is the second sentence of article X,
section 4, which confirms “[a]ll rights, immunities, franchises,

13 	No. 20030877
and endowments originally established or recognized by the
constitution for any public university or college.” 	The
University contends that these rights include the institutional
autonomy to disregard legislative enactments that interfere with
its academic mission. 	Because this sentence reserves to the
University only those rights “originally established” by the
constitution, we must examine the scope of those original rights.
¶35 	The original constitutional provision governing higher
education, article X, section 4, remained unchanged from the time
of statehood until the adoption of the current provision. 	The
original version provided:
The location and establishment by
existing laws of the University of Utah, and
the Agricultural College [Utah State
University] are hereby confirmed, and all the
rights, immunities, franchises and endowments
heretofore granted or conferred, are hereby
perpetuated unto said University and
Agricultural College respectively.
Utah Const. art. X, § 4 (1896).
¶36 	By its plain language, this original constitutional
provision did not create or confer any new powers or authority on
the University. 	Rather, it simply “perpetuated” the rights
enjoyed by the University at the time of statehood. 	We therefore
must examine the scope of the rights enjoyed by the University at
the time our constitution was adopted.
¶37 	This court exhaustively examined the historical record
and outlined the scope of the University’s rights at the time of
statehood in the case of University of Utah v. Board of
Examiners, 295 P.2d 348 (Utah 1956). 	As explained in that
opinion, the University was “instituted and incorporated [in
1850] by an ordinance of the State of Deseret.” 	Id. at 350. 	In
1892, just four years prior to statehood, the territorial
legislature enacted a new comprehensive statute governing the
University and repealed all other laws in conflict with its
provisions (the “1892 Act”). 	The 1892 Act described the
University as “a body corporate with perpetual succession” with
“all the property, credits, effects and franchises of the
existing corporation, subject to all [its] contracts, obligations
and liabilities.” 	Utah Rev. Stat. § 2295 (1898). 	It vested
management of the University in a board of regents. 	Id.
Finally, it provided that the University “shall be deemed a

6 The fact that the 1892 Act gave the board of regents of
the University the power to “adopt by-laws” and to “employ or
provide for the employment of all instructors and employees, 1892
Laws of Utah ch. IX, § 11, indicates only that the University was
given some authority to control its internal affairs. 	Nothing in
the 1892 Act suggests that the legislature intended to give up
ultimate governing authority over the University simply because
it conferred on the University certain powers of internal
governance.
No. 20030877 	14
public corporation and be subject to the laws of Utah, from time
to time enacted, relating to its purposes and government.” 	Id.
¶38 	The University reasons that because the 1892 Act vested
management of the University in a board of regents and gave it
power to employ instructors and employees, the University has
authority to supervise and control University activities and is
protected “from legislative interference of the University’s
autonomy in relation to academic matters.” 	We disagree.
¶39 	The territorial legislature gave the University broad
authority to regulate its day-to-day affairs, and it retained the
powers typically bestowed on corporations, such as the authority
to make contracts, purchase property, and use the proceeds of
such property. 	See 18 Am. Jur. 2d Corporations § 1 (2006)
(generally listing the attributes of a corporation). 	But the
University was never given the power to act in contravention of
legislative enactments. 	Rather, the authority conferred on the
University by the 1892 Act, which was later incorporated into the
Utah Constitution, was limited by the language rendering the
University “subject to the laws of Utah.” 	1892 Laws of Utah, ch.
IX, § 1. 	As we concluded in Board of Examiners, although the
University retained certain rights, privileges, immunities, and
franchises associated with public corporations, it was never
exempt from the obligation of all Utah citizens and entities to
follow Utah law. 	Its authority was subject to general
legislative oversight, even to legislative enactments relating to
its core academic functions. 6
¶40 	Our conclusion in this regard is not only supported by
the language of the 1892 Act, but it is also supported by
legislative enactments following statehood. 	Shortly after
statehood, the state legislature enacted a statute prohibiting
the University’s bylaws and regulations from being “inconsistent
with the laws of the state.” 	Utah Rev. Stat. § 2295 (1898). 	And
the University was subject to a number of laws that governed
everything from the composition of its governing body to the
content of its academic offerings. 	Our opinion in Board of

15 	No. 20030877
Examiners, 295 P.2d 348, summarizes the many early legislative
enactments directed at the University. 	For example, a 1905
statute prohibited the University from including “in its courses
agriculture, horticulture, animal industry, veterinary science,
domestic science and art.” 	Compiled Laws of Utah tit. 74, ch.
11, § 2292 (1907). 	A 1921 statute prohibited the University from
awarding degrees in domestic science or art, Utah Rev. Stat.
§ 75-4-5 (1933), and a 1923 statute required the University to
give instruction on the Constitution of the United States. 	Utah
Rev. Stat. § 75-1-2 (1933). 	In short, neither the constitutional
text nor the historical record supports the University’s view
that it possesses constitutional autonomy to disregard
legislative enactments.
¶41 	The University acknowledges that it is “subject to
legislative control regarding its budget and finances,” but
maintains that this court has never held that the legislature may
control the University’s central academic purpose. 	While the
University is correct that our prior cases did not involve
legislative action directed at the University’s academic mission,
the fact remains that the reasoning of those cases is
incompatible with the University’s position. 	Our prior case law
construing article X, section 4 has consistently upheld the power
of the legislature to exercise “general control and supervision”
over higher education, including the University.
¶42 	In Spence v. Utah State Agricultural College, 225 P.2d
18 (Utah 1950), this court upheld the ongoing authority of the
legislature to alter the controlling board of what is now Utah
State University. 	In describing the purpose and effect of
article X, section 4, the opinion used the following language:
[W]hile the article does make mention of
perpetuating the rights, franchises,
immunities and endowments previously granted,
its wording does not, even by implication,
suggest an intent to oust the legislature
from ever dealing with any affairs of the
college, be the dealing favorable or
prejudicial to its welfare.
Spence, 225 P.2d at 22.
¶43 	In Board of Examiners, this court examined the question
of whether “Article X, Section 4 of the Utah Constitution
establishe[d] the University as a constitutional corporation free
from the control of the Legislature, administrative bodies,
commissions and agencies and officers of the State.” 	295 P.2d at

No. 20030877 	16
349. 	After an extensive analysis of the constitutional language
and historical context of article X, section 4, this court
answered the question in the negative. 	Id. at 371.
¶44 	The Board of Examiners opinion distinguished Utah’s
constitutional language from that of other states whose
constitutions vest their institutions of higher learning with the
institutional autonomy the University seeks. 	Id. at 355-60.
After discussing the differences between those constitutions and
Utah’s constitution, it reasoned:
If the framers of the Utah Constitution
had intended to create the University of Utah
a constitutional corporation, completely
autonomous and free from legislative control,
it is difficult to understand why language
such as was used in the constitutions of
Michigan, Minnesota and the other
constitutions referred to was not used.
. . . .
That the framers of the Utah
Constitution did not adopt language similar
to the constitutions of Minnesota and Idaho,
even though the convention had before it the
constitutions of those states is evidence
that a different result was intended.
Id. at 360. 	It concluded:
There is not in Article X, Section 4, or
elsewhere in the Constitution of Utah any
express prohibition against action by the
legislature respecting the University. 	Nor
do we believe that the Constitution contains
any implied restraint against such action.
. . . .
Nothing in the arguments and debates in
the Constitutional Convention on the
education article, (X) and more particularly,
on Section 4, tends to suggest that it was
considered by the delegates that the
Legislature by said article would be
prohibited from acting in respect to the

7 Article X, section 3 provides:
The general control and supervision of the
public education system shall be vested in
the State Board of Education. 	The membership
of the board shall be established and elected
as provided by statute. 	The State Board of
Education shall appoint a State
Superintendent of Public Instruction who
shall be the executive officer of the board.
Utah Const. art. X, § 3.
17 	No. 20030877
University, except in matters of location and
establishment.
Id. at 361, 368.
¶45 	In State Board of Education v. State Board of Higher
Education, 505 P.2d 1193, 1195-96 (Utah 1973), this court
described its prior decisions interpreting article X, section 4
as establishing that the article “confirmed the location and
establishment of [the University and Utah State University] but
that they remained subject to the control of the legislature.”
Indeed, our precedent has been so clear on this issue that the
Tenth Circuit has recognized that “the University is not
autonomous but rather is a state-controlled entity.” 	Watson v.
Univ. of Utah Med. Ctr., 75 F.3d 569, 575 (10th Cir. 1996).
¶46 	Our interpretation of the language in article X,
section 4 confirming the legislature’s right of “general control
and supervision” over the University is also consistent with our
interpretation of similar language found elsewhere in our
constitution. 	In Utah School Boards Ass’n v. Utah State Board of
Education, 2001 UT 2, ¶ 14, 17 P.3d 1125, we examined language
from article X, section 3, 7 which governs Utah’s public education
system. 	While section 4 vests “general control and supervision”
of the higher education system in the legislature, section 3
vests “general control and supervision” of the public education
system in the State Board of Education. 	We construed this
language in the context of the Utah School Boards Association’s
challenge to a statute that vested the state school board with
authority to make decisions regarding individual schools. 	The
Association argued that the phrase “general control and
supervision” actually restricted the authority of the state
school board, preventing it from exercising “specific or local
supervision and control.” 	Id. ¶ 7.
¶47 	We rejected the association’s premise that the phrase
“general control and supervision” limited the Board’s authority.

No. 20030877 	18
Instead, we concluded that the “common and ordinary
understanding” of the phrase encompassed “the authority to direct
and manage all aspects of the public education system in
accordance with the laws made by the legislature.” 	Id. ¶ 22.
¶48 	Applying this plain language interpretation to article
X, section 4, we conclude that because it reserves to the
legislature the power of “general control and supervision” over
the higher education system, the legislature has the ability to
generally manage all aspects of the University. 	No other
constitutional language restricts the legislature from exercising
this power, and the legislature has not passed any statutes
ceding its authority. 	Thus, the University cannot possess
autonomous powers that would allow it to act in contravention of
legislative enactments.
¶49 	Our holding in this regard is also consistent with the
language of Utah’s Enabling Act. 	Section 11 of that Act
indicates that the University “shall forever remain under the
exclusive control of [the] State.” 	Act of July 16, 1894, ch.
138, 28 Stat. 107, 110. 	“Exclusive” suggests that other entities
may not exercise that control. 	See Webster’s II: New Riverside
University Dictionary 450 (1988 ed.). 	The Enabling Act therefore
supports our conclusion that the legislature’s role in relation
to the University goes beyond merely financing its operations.
¶50 	As support for its view that the framers intended the
University to be free from legislative control, the dissent
relies on the fact that the framers did not preserve the
legislature’s powers to amend the University’s corporate charter,
even though it preserved this right for other corporations.
Infra ¶ 65. 	We find such an argument to be untenable. 	The fact
that the University’s corporate status is beyond legislative
control does not mean that the framers intended to cede the
legislature’s power to control other aspects of the University.
1892 Laws of Utah ch. IX, § 1. 	The concurrence in Board of
Examiners, 295 P.2d at 371, specifically recognized that whether
or not the University is regarded as a constitutional
corporation, it is not “completely free.” 	Rather, “[i]ts powers
are still to be found in, and circumscribed by, the language by
which it is created . . . which seems to indicate clearly that it
was subject to control by the territorial legislature, and
consequently by the state legislature.” 	Id.
¶51 	In summary, we simply cannot agree with the proposition
that the Utah Constitution restricts the legislature’s ability to
enact firearms laws pertaining to the University. 	The plain
language of article X, section 4 and this court’s prior

19 	No. 20030877
pronouncements on the issue of university governance compel the
conclusion that the University is subject to legislative control,
and therefore cannot enforce its firearms policy in contravention
of state law.
III. 	POLICY CONCERNS AND THE UNIVERSITY’S
CLAIM TO ACADEMIC FREEDOM
¶52 	The University devotes much of its briefing to the
policy reasons supporting its claim to institutional autonomy,
arguing that its firearms policy is a necessary component of an
environment necessary to fulfill its educational mission.
Specifically, the University asserts that failure to recognize a
right of institutional autonomy will lead to undesirable results,
including safety concerns, a hampering of the free exchange of
ideas, and potential disruption of “the work and discipline of
the school.”
¶53 	No matter how persuasive we may find such arguments, we
are constrained by our judicial role. 	Our role is one of
interpreting, not drafting. 	“This court is not called on to
decide which is better, an autonomous University or a
legislatively controlled University. 	Rather, it is our duty to
give proper effect to the language of the Constitution and the
territorial statute bearing on the question.” 	Univ. of Utah v.
Bd. of Exam’rs, 295 P.2d 348, 354 (Utah 1956). 	We are not free
to disregard constitutional and statutory language on the basis
of policy considerations. 	“[U]nless it appears so clearly . . .
beyond a reasonable doubt that there is some violation of a
constitutional provision, or irreconcilable conflict therewith,
the courts should leave that responsibility where the
constitution expressly placed it: 	with the legislature.”
Jenkins v. Bishop, 589 P.2d 770, 771 (Utah 1978) (Crockett, J.,
concurring).
¶54 	In this case, we conclude that the legislature has not
overstepped its constitutional bounds. 	The plain meaning of
article X, section 4 of the Utah Constitution, supported by
history, context, and our prior decisions, is that although the
University has broad powers, it is not completely autonomous, and
it is ultimately subject to legislative oversight. 	Policy
considerations, no matter how persuasive, cannot dictate a
contrary interpretation. 	The Utah Constitution does not grant
the University authority to promulgate firearms policies in
contravention of legislative enactments, and it is not our place
to do so. 	To the extent their constituents disagree with the
legislature’s choice, their remedy is to express their
dissatisfaction at the ballot box.

No. 20030877 	20
¶55 	Finally, we reiterate that the University’s claims
based on the right to academic freedom under the First and
Fourteenth Amendments of the United States Constitution are not
before us. 	The federal district court has retained jurisdiction
over these claims. 	With the University’s state law claims
resolved, the parties are free to return to federal court for
resolution of the University’s federal law claims.
CONCLUSION
¶56 	We hold that the University lacks the authority to
enact firearms policies in contravention of Utah statutory law.
Having determined that article I, section 6 of the Utah
Constitution is not relevant to our analysis, we conclude that
the plain language of article X, section 4 is inconsistent with
the University’s claim that it possesses the institutional
autonomy to promulgate a firearms policy in contravention of Utah
Code section 63-98-102(5).
¶57 	Article X, section 4 did not create any new rights in
the University. 	Rather, it perpetuated only those rights enjoyed
by the University at the time of statehood. 	The 1892 Act
establishing the University as a public corporation provided that
the University was subject “to the laws of Utah, from time to
time enacted, related to its purposes and government.” 	1892 Laws
of Utah ch. IX, § 1. 	We accordingly conclude that the University
is subject to Utah law prohibiting it from enacting or enforcing
any policy restricting the possession or use of firearms.
---
¶58 	Associate Chief Justice Wilkins, Justice Durrant, and
Justice Nehring concur in Justice Parrish’s opinion.
---
DURHAM, Chief Justice, dissenting:
¶59 	I concur with the majority’s analysis in Part I but
respectfully dissent from the conclusions reached in Part II.
¶60 	The dispositive question before the court is whether
Utah Code section 63-98-102 is unconstitutional insofar as it
purports to prohibit the University, absent “specific[]
authoriz[ation]” from the legislature, from “establish[ing] or
enforc[ing] any . . . policy pertaining to firearms that in any
way inhibits or restricts the possession or use of firearms on

21 	No. 20030877
either public or private property.” 	Utah Code Ann.
§ 63-98-102(5) (2004). 	The answer to this question rests on
whether article X, section 4 of the Utah Constitution vests the
University with the autonomous power to restrict firearm
possession among its students and employees. 	If article X,
section 4 grants such authority to the University, then the
legislature is foreclosed from infringing upon this authority by
a statutory enactment such as section 63-98-102.
¶61 	Article X, section 4 states:
The general control and supervision of the
higher education system shall be provided for
by statute. 	All rights, immunities,
franchises, and endowments originally
established or recognized by the constitution
for any public university or college are
confirmed.
The University rests its claim of autonomy on the second sentence
of this section. 	Essentially, it argues that the constitutional
language perpetuating “[a]ll rights, immunities, franchises and
endowments originally established or recognized” reserves to the
University the power to take whatever action it deems necessary
to carry out its mission of providing higher education to the
people of the state. 	I therefore examine the meaning of this
second sentence more closely.
¶62 	The use of the phrase “originally established or
recognized by the constitution” in the second sentence of article
X, section 4 requires an examination of the original version of
this constitutional provision as it existed prior to its 1987
amendment. 	The original provision confirmed “[t]he location and
establishment by existing laws of the University of Utah” and, in
turn, “perpetuated unto said University” “all the rights,
immunities, franchises and endowments heretofore granted or
conferred.” 	Utah Const. art. X, § 4 (amended 1987). 	As the
Attorney General and the legislature argue, the terms “rights,
immunities, franchises, and endowments” are terms commonly used
to refer to the powers of corporate entities. 	It seems clear
that they so refer here since, as mentioned, the University is a
corporate entity. 	The question is, therefore, what rights,
immunities, franchises, and endowments were granted to the
University as a corporate entity prior to the Utah Constitution’s
ratification in 1896?
¶63 	This court faced the same question previously when the
University sought a declaration that it was not subject to state

1 Like the majority and the Board of Examiners court, we
recognize the Idaho and Michigan constitutions contain language
(continued...)
No. 20030877 	22
legislative enactments “requiring preaudit of bills, submission
of work programs and deposit of funds into the State Treasury.”
Univ. of Utah v. Bd. of Exam’rs, 295 P.2d 348, 350 (Utah 1956).
The court denied the University’s claim, relying primarily on an
1892 territorial enactment that declared the University “‘a
public corporation [that shall] be subject to the laws of Utah,
from time to time enacted, relating to its purposes and
government.’” 	Id. at 352 (quoting 1892 Laws of Utah ch. IX,
§ 8). 	The Attorney General argues that Board of Examiners
decided the issue now before us because it affirmed the
continuing applicability of this provision in the 1892 act.
¶64 	Although I agree that Board of Examiners rejected the
University’s claim of absolute autonomy, I disagree that the
court in that decision conclusively subjected the University to
legislative control on all matters. 	As quoted above, the 1892
Act designated the University a “public corporation.” 	One
treatise has explained:
A public corporation that is not municipal is
one created by the state solely as its own
device and agency . . . . A state university
. . . constitute[s], if incorporated, [an]
illustration[] of this class. 	Because the
independent powers of such corporations are
frequently nominal, or small . . . these
organizations are sometimes described . . .
as public quasi corporations.
1 Eugene McQuillin, The Law of Municipal Corporations § 2.03.20
(3d ed. rev. 1999). 	It does not necessarily follow, however,
that all incorporated state universities have only nominal
independent power, particularly where the university in question
is provided for in the state constitution. 	See, e.g., State ex
rel. Black v. State Bd. of Educ., 196 P. 201, 205 (Idaho 1921)
(recognizing the University of Idaho as “a constitutional
corporation with granted powers”); Sterling v. Regents of Univ.
of Mich., 68 N.W. 253, 257 (Mich. 1896) (interpreting the
extensive powers granted to the University of Michigan by
Michigan’s constitution); State ex rel. Univ. of Minn. v. Chase,
220 N.W. 951, 952-54 (Minn. 1928) (discussing the constitutional
corporate status of the University of Minnesota). 	Although the
language in our state’s constitution varies from the language in
the constitutions of Idaho, Minnesota, and Michigan, 1 our

1 (...continued)
that is somewhat different from the language used in our
constitution. 	For example, article IX, section 10 of the Idaho
Constitution provides, in part:
All the rights, immunities, franchises, and
endowments, heretofore granted thereto by the
territory of Idaho are hereby perpetuated
unto the [University of Idaho]. 	The regents
shall have the general supervision of the
university, and the control and direction of
all the funds of, and appropriations to, the
university, under such regulations as may be
prescribed by law.
Likewise, article VIII, section 5 of the Michigan constitution
designates each board of regents of the University of Michigan,
Michigan State University, and Wayne State University as a
separate “body corporate” and provides that “[e]ach board shall
have general supervision of its institution and the control and
direction of all expenditures from the institution’s funds.”
The current provision in Minnesota’s constitution is more
closely aligned to article X, section 4 of the Utah Constitution,
providing only that “[a]ll the rights, immunities, franchises and
endowments heretofore granted or conferred upon the University of
Minnesota are perpetuated unto the university.” 	However, the
constitutional provision in existence at the time of State ex
rel. University of Minnesota v. Chase, 220 N.W. 951, 952-54
(Minn. 1928), also provided that “all lands which may be granted
hereafter by Congress, or other donations for said university
purposes, shall vest in the institution referred to in this
section.” 	Id. at 953-54 (citing Minn. Const. art. 8, § 4
(1858)). 	In University of Utah v. Board of Examiners, 295 P.2d
348, 356 (Utah 1956), this court relied heavily on the latter
clause in distinguishing the language of the Minnesota
constitution from the language in our constitution.
2 The 1896 constitution’s perpetuation of the University’s
rights in specific corporate language distinguishes it from at
least one earlier draft of the constitution that never went into
effect. 	The 1882 draft stated that “[t]he University of [Utah]
shall be the University of this State, and be under the control
of the legislature, and constitute a public trust.” 	Constitution
of the State of Utah, art. XI, § 4 (1882). 	The fact that the
framers of the 1896 constitution removed this language and
(continued...)
23 	No. 20030877
constitution nevertheless recognizes the University’s corporate
powers. 	Article X, section 4 explicitly perpetuated these
corporate powers in 1896 and thereafter confirmed them in 1987. 2

2 (...continued)
instead explicitly perpetuated the University’s corporate powers
lends further support to my interpretation.
No. 20030877 	24
In my view, this constitutional recognition of corporate powers
raises the status of the University above that of most public
corporations.
¶65 	Significantly, the University was the only corporate
entity, public or private, whose corporate powers the framers of
the original 1896 constitution sought to insulate from subsequent
legislative control. 	Elsewhere, the constitution specifically
states that “[n]o law shall be passed granting irrevocably any
franchise, privilege or immunity.” 	Utah Const. art. I, § 23.
This provision made clear that all corporate charters granted
after the constitution’s adoption would be subject to legislative
amendment. 	The 1896 article governing corporations directed that
“[c]orporations . . . shall not be created by special acts” and
that “[a]ll laws relating to corporations may be altered, amended
or repealed by the Legislature.” 	Utah Const. art. XII, § 1
(amended 1993). 	Again, this provision allowed the legislature to
amend the general laws under which private corporations would be
chartered. 	In regard to municipal corporations, the 1896
constitution similarly provided that “[t]he Legislature, by
general laws, shall provide for the incorporation . . . of cities
and towns . . . ; which laws may be altered, amended or
repealed.” 	Utah Const. art. XI, § 5 (amended 1933 & 2001). 	The
proceedings of the constitutional convention indicate that the
framers of the 1896 constitution were concerned with the United
States Supreme Court case of Trustees of Dartmouth College v.
Woodward, 17 U.S. (4 Wheat) 518 (1819), which had held that a
legislature may not amend a corporate charter, once granted,
unless the legislature expressly retains the right to do so in
the original grant. 	See 1 Official Report of the Proceedings and
Debates of the Constitutional Convention 366 (1898) (statement of
Mr. Evans) (citing Dartmouth College when urging passage of
article I, section 23); id. at 1467 (statement of Mr. Hart)
(citing Dartmouth College when urging passage of article XII,
section 1, recognizing that, “when the legislature once granted a
corporate privilege, under the decision of that case the state
itself no longer had any power over the corporation”). 	The fact
that the framers of the Utah Constitution were careful to
preserve the legislature’s power to amend the charters of all
corporations, private or municipal, except for the University’s
strongly suggests an intent to preserve the University’s
corporate powers independent of legislative control and supports
my plain language interpretation of article X, section 4. 	See
also State ex rel. Univ. of Minn., 220 N.W. at 954 (interpreting

25 	No. 20030877
the Minnesota Constitution’s perpetuation of “[a]ll the rights,
immunities, franchises and endowments heretofore granted” to its
state university as having “a definite legal import; the terms
are those of confirmation in perpetuity of a prior grant of
corporate rights”).
¶66 	Also in line with this interpretation, the two justices
who concurred in the Board of Examiners’ lead opinion qualified
their concurrence by acknowledging that the University was a
“constitutional corporation” in that “its corporate status and
existence” were “beyond the power of legislative control.” 	295
P.2d at 371 (Crockett, J., concurring); see also Hansen v. Utah
State Retirement Bd., 652 P.2d 1332, 1340 (Utah 1982)
(recognizing that “the University of Utah . . . enjoys a degree
of constitutionally rooted independence” distinct from “an
executive department agency”). 	The concurrence thus recognized
that “[i]t would undoubtedly require a change in the Constitution
to abolish the University or to change substantially its nature
or function” and noted that the case before it did not involve
“any question of interference with the corporate existence or the
operation of the institution in any manner that would
substantially alter its function as a university.” 	Bd. of
Exam’rs, 295 P.2d at 371 (Crockett, J., concurring). 	Here, in
contrast, according to the University, the question of its
authority to prohibit students and employees from carrying
firearms is directly tied to its ability to carry out its
academic function.
¶67 	Based on my examination of the early history of Utah’s
higher education system, as related in Board of Examiners, I
agree with the concurrence in that case that “[t]he importance
and desirability of a high degree of independence of [the
University’s] internal function, and of [its] academic freedom,
was unquestionably recognized by the founders” of our
constitution. 	Id. (Crockett, J., concurring). 	Significantly,
the 1892 Act relied on in Board of Examiners clearly
distinguishes between the state’s general control over the
University’s purposes and government and the University’s
internal regulation of its academic affairs. 	In regard to the
former, both the territorial legislature and the framers of our
constitution were concerned with the relationship between the
University and other institutions of public education. 	By
retaining control over the University’s purposes and government,
the legislature intended to ensure the efficiency and
effectiveness of the state’s system of higher education as a
whole. 	At the same time, the legislature defined the
University’s mission as the system’s flagship academic

3 The original act establishing the University provided that
the corporate powers of the University were vested in the board
of regents and included the powers
“to sue and be sued; to act as Trustees of
the University, to transact, or cause to be
transacted, all business needful to the
prosperity of the University in advancing all
useful and fine arts and sciences; to select
and procure lands; erect and purchase
buildings; solicit donations; send agents
abroad; receive subscriptions; purchase
books, maps, charts, and all apparatus
necessary for the most liberal endowment of
any library, and scientific institution;
employ professors and teachers; make by-laws,
establish branches of the University
(continued...)
No. 20030877 	26
institution. 	Both of these intentions are evidenced in the 1892
Act, which states:
“The University shall be the highest branch
of the public system of education in Utah,
and, as far as practicable its courses and
methods of instruction shall be arranged to
supplement and continue the instruction in
other branches of the public system, and with
a view to afford and complete a thorough
education to students of both sexes in
arts[,] science and literature, and in such
professional branches as may be included in
its courses of instruction.”
Bd. of Exam’rs, 295 P.2d at 352 (quoting 1892 Laws of Utah ch.
IX, § 2). 	The 1892 act directed that the University include a
department that would engage in “practice in teaching and
instruction in pedagogy,” 1892 Laws of Utah ch. IX, § 5, a
“school for deaf mutes,” 1892 Laws of Utah ch. IX, § 6, a
“military department,” at least until June 1894, 1892 Laws of
Utah ch. IX, § 7, and a preparatory program, 1892 Laws of Utah
ch. IX, § 8.
¶68 	At the same time that the 1892 Act identified the
University’s role as the highest educational institution in the
state and designated particular fields of instruction, the Act
provided for the University’s relative independence in regard to
its internal academic affairs. 	The Act vested in the board of
regents, the corporate officers of the University 3 (now the board

3 (...continued)
throughout the State; and do all other things
that fathers and guardians of the Institution
ought to do.”
Bd. of Exam’rs, 295 P.2d at 350 (quoting § 4, State of Deseret
Ordinance of Feb. 28, 1850). 	This list includes many of the
powers generally considered to inhere in a corporate entity
simply by virtue of its corporate status. 	See 6 Fletcher
Cyclopedia Corporations § 2485 (listing among a corporation’s
“inherent attributes” “the power of perpetual succession and
duration, the power to sue and be sued in the corporate name, the
power to purchase, hold, and transfer real and personal property,
the power to have a corporate seal, the power to make and amend
bylaws, the power to lend and invest money, the power to make
contracts and guarantees” (footnotes omitted)).
27 	No. 20030877
of trustees), the authority to “adopt by-laws” governing its own
organization and conduct and to “employ or provide for the
employment of all instructors and employees.” 	1892 Laws of Utah
ch. IX, § 11. 	The board was further authorized to
provide for the organization of a faculty of
the instructors of which the President shall
be the chairman and executive officer, and
. . . [to] commit to the faculty the general
management and control of instruction, and
the exercise of such powers regarding the
examination, admission, classification and
instruction of students as the regents may
deem proper.
Id. 	This provision of the 1892 Act indicates that the University
itself, as a corporate entity, was given control over internal
academic matters regarding the hiring of faculty and the
admission and instruction of students.
¶69 	The framers of the 1896 Utah Constitution did nothing
to controvert this authority. 	Rather, they were concerned with
the distribution of educational purposes between the two
institutions of higher education that then existed--the
University and the Agricultural College (now Utah State
University)--and with maintaining the unique function of each.
While some delegates “supported consolidation [of the two
institutions] on the ground of efficiency and economy,” others
“argued that agricultural subjects would be overshadowed by
classical subjects if the schools were united.” 	Bd. of Exam’rs,
295 P.2d at 368. 	By establishing the two institutions in their
separate locations, the framers decided against consolidation.

No. 20030877 	28
Id. 	In 1905, the legislature determined that, in the absence of
constitutional revision, it lacked the authority to reconsider
this decision despite any duplication in the work in which the
two institutions engaged. 	Id. at 369. 	It did, however, take
other steps designed to limit duplication, “prohibit[ing] [the
University] from including in its courses agriculture,
horticulture, animal industry, veterinary science, domestic
science and art.” 	Id. at 364.
¶70 	When presenting the 1896 constitution to the people for
adoption, Utah’s constitutional convention declared that “[t]he
article on the proposed Educational System has absorbed the best
thoughts and efforts of the Convention, and draws around the
Public Schools such protection and defense as will secure for
them, it is believed, the steady upward progress which is the
enthusiastic desire of this people.” 	2 Official Report of the
Proceedings and Debates of the Constitutional Convention 1847
(1898). 	I believe that the analysis above shows that the framers
intended to secure the University’s “protection and defense” by
perpetuating its autonomous control over internal academic
affairs, as originally granted in the 1892 Act. 	By retaining
control over the University’s purposes and the structure of its
governing board, the 1892 territorial legislature ensured the
government’s ability to distribute various specialized
educational endeavors among different public educational
institutions and to regulate the entire higher education system
with maximum efficiency. 	E.g., State Bd. of Educ. v. State Bd.
of Higher Educ., 505 P.2d 1193, 1196 (Utah 1973) (plurality
opinion) (upholding the legislature’s establishment of the Board
of Higher Education, now the Board of Regents, to exercise
general control, management, and supervision over the state’s
system of higher education); Spence v. Utah State Agric. Coll.,
225 P.2d 18, 22 (Utah 1950) (holding the legislature could
increase the number of trustees for the Agricultural College).
Control over University budgetary matters, as recognized in Board
of Examiners, similarly ensured that the state government would
retain ultimate authority over the state’s financial affairs.
See 295 P.2d at 370 (“To hold that [the University] has free and
uncontrolled . . . use of its property and funds, while making
the State guarantee said funds against loss or diversion is
inconceivable.”). 	At the same time, the University was granted
autonomy over academic matters--matters which it was uniquely
competent to control and which were intrinsic to its function as
an institution of higher education. 	This type of internal
autonomy is consistent with the powers that a private university
would enjoy by virtue of its corporate status. 	See 6 Fletcher
Cyclopedia Corporations § 2545 (“An educational institution . . .
may exercise those powers expressly conferred by law and its

4 In 1969, the legislature established a state agency, later
named the Board of Regents, for the purpose of allocating
educational functions among the various institutions in the
state’s system of higher education. 	Higher Education Act of
1969, ch. 138, § 4, 1969 Utah Laws 582, 583 (codified as amended
at Utah Code Ann. § 53B-1-101 (2000)).
5 The full text of article X, section 3 provides:
(continued...)
29 	No. 20030877
charter as well as those powers necessary to carry out its
educational purposes. 	It generally has the power . . . to charge
reasonable fees to students; to grant degrees and issue diplomas;
to provide specialized training and instruction for the trades
and professions; and to regulate student conduct and activities.”
(footnotes omitted)).
¶71 	I therefore conclude that, aside from the selection of
general fields of study, 4 the power to control academic affairs
on its campus is among those corporate rights and privileges
perpetuated by the 1896 constitution and confirmed by its 1987
revision of article X, section 4. 	The majority disagrees,
arguing that the University does not have academic autonomy. 	It
bases its conclusion, in part, on the first clause in article X,
section 4, which provides that “[t]he general control and
supervision of the higher education system shall be provided for
by statute.” 	To determine the meaning of this phrase, the
majority turns to the “general control and supervision” language
contained in article X, section 3 of the Utah Constitution, as
construed in Utah School Boards Ass’n v. Utah State Board of
Education, 2001 UT 2, ¶ 14, 17 P.3d 1125. 	Supra ¶¶ 46-47. 	In
Utah School Boards Ass’n, this court held that article X, section
3’s clause vesting “[t]he general control and supervision” of the
public education system in the State Board of Education meant the
Board of Education had “the authority to direct and manage all
aspects of the public education system in accordance with the
laws made by the legislature.” 	2001 UT 2, ¶ 22. 	According to
the majority, the same construction applies to the “general
control and supervision” language contained in article X, section
4, thus giving the legislature the same authority with respect to
the University as the State Board of Education has with respect
to the public schools. 	Supra ¶ 48. 	I disagree. 	The second
sentence of article X, section 4, which confirms the University’s
original “rights, immunities, franchises, and endowments,” acts
as a limitation on the legislature’s authority to provide for the
“general control and supervision of the higher education system.”
Utah Const. art. X, § 4. 	No such limiting language exists in
article X, section 3. 5 	Thus, the two provisions cannot be said

5 (...continued)
The general control and supervision of the
public education system shall be vested in
the State Board of Education. 	The membership
of the board shall be established and elected
as provided by statute. 	The State Board of
Education shall appoint a State
Superintendent of Public Instruction who
shall be the executive officer of the board.
6 I therefore do not wish to imply that I believe the
University to be immune from all state supervision, even in
regard to its personnel policies. 	Cf. Regents of the Univ. of
Mich. v. Employment Relations Comm’n, 204 N.W.2d 218, 223 (Mich.
1973) (holding that “[p]roblems concerning the disputes between
employees and public employers . . . [are] a matter of public
policy” and that the University of Michigan was therefore not
exempt from the state public employees relations act).
No. 20030877 	30
to have the same meaning, and the first clause of article X,
section 4 does not grant the legislature “the authority to direct
and manage all aspects” of the University’s academic affairs.
Based on this conclusion, I do not believe the legislature may
enact a statute interfering with internal academic matters at the
University. 	The remaining question, therefore, is whether, as
the University argues, the provisions of the University’s
personnel and student conduct policies that prohibit employees
and students from carrying firearms on campus fall within the
scope of the University’s academic autonomy.
¶72 	As indicated above, the academic powers originally
vested in the University relate to matters, such as faculty
hiring and student instruction, that directly involve the unique
institutional competence of a university. 	The Attorney General
argues that the University’s firearms policies are an attempt “to
create policy contrary to legislative enactments.” 	The Attorney
General thus implies that the University’s policies simply
reflect a different view of the underlying social and political
controversy over the potential benefits and harms involved in
carrying firearms. 	I agree that the University has no particular
expertise that would put it in a better position than the
legislature to decide the state’s policy in regard to these
controversial issues, nor would I argue that the University has
any authority to do so. 	That is a matter squarely within the
legislature’s authority to decide. 6 	However, I do not regard the
University’s policies as reflecting a social or political
judgment on whether, for example, more people carrying firearms
generally leads to more or less crime. 	Applying, as they do,

7 The University points out that, in the past thirty-two
years, only twenty crimes involving firearms have occurred on its
campus, six of which were suicides and four of which involved
armed robbery of credit unions. 	I recognize, of course, that
those who wish to carry firearms for their personal protection
are concerned with defending themselves not only against
attackers who wield firearms but also against those who may
otherwise be able to succeed in an assault without using a
firearm. 	However, as there is no evidence in the record
demonstrating that attacks by strangers (with or without
firearms) against employees or students on campus are common, and
as the University’s policies do allow students and employees to
receive authorization to carry a firearm on an individual basis,
I remain unable to conclude that the policies implicate
legislative concerns regarding the best way to prevent crime.
Students and employees may well have their own concerns regarding
the burden University policies place on their constitutional
right to bear arms. 	Such concerns are properly raised by
individual students and employees in a claim against the
University under article I, section 6.
31 	No. 20030877
only to University employees and students, and only while these
individuals are on the University campus, these policies merely
reflect the University’s judgment on an issue that is within the
scope of its academic expertise--namely, the appropriate means by
which to maintain an educational environment in its classrooms
and on its campus. 7
¶73 	It is significant that, even outside the context of
federal “academic freedom” analysis, a number of courts have
explicitly recognized that a university’s academic role extends
beyond the classroom itself to the maintenance of an educational
atmosphere on its campus. 	See, e.g., Esteban v. Cent. Mo. State
Coll., 415 F.2d 1077, 1088 (8th Cir. 1969) (characterizing
“college regulations relating to conduct” as “codes of general
conduct which those qualified and experienced in the field have
characterized . . . as part of the educational process itself”
and recognizing that “a school has inherent authority to maintain
order and to discipline students”); Moore v. Student Affairs
Comm., 284 F. Supp. 725, 729 (M.D. Ala. 1968) (recognizing Troy
State University’s “affirmative obligation to promulgate and to
enforce reasonable regulations designed . . . to promote an
environment consistent with the educational process” (internal
quotation marks omitted)); Goldberg v. Regents of Univ. of Cal.,
57 Cal. Rptr. 463, 472 (Ct. App. 1967) (holding that a
university’s function of “impart[ing] learning and . . .
advanc[ing] the boundaries of knowledge . . . carries with it the
administrative responsibility to control and regulate that

No. 20030877 	32
conduct and behavior of the students which tends to impede,
obstruct or threaten the achievements of its educational goals”);
State v. Hunter, 831 P.2d 1033, 1036 (Utah Ct. App. 1992)
(holding that because “[s]tudents attending a university require
and are entitled to an atmosphere that is conducive to
educational pursuits,” Utah State University had a “contractual
duty” to maintain such an atmosphere in its student dormitories
(emphasis added)); Nzuve v. Castleton State Coll., 335 A.2d 321,
325 (Vt. 1975) (“Educational institutions have both a need and a
right to formulate their own standards [for academic discipline]
and to enforce them.”). 	This recognition reflects the fact that
a university, by its nature, is more than the sum of its classes.
Its educational endeavor extends to unorganized activities and
discussion among its students and faculty in its offices,
hallways, cafeterias, libraries, and open spaces on its campus.
The maintenance of an appropriate atmosphere within which such
activity may occur is directly related to a university’s academic
mission. 	Thus, if the University’s policies are reasonably
connected with its academic mission and the campus environment
necessary to that mission, those policies are within its
autonomous authority over academic affairs. 	The record in this
case contains extensive evidence that practitioners and experts
in higher education are convinced that a no weapons on campus
policy is necessary to the educational enterprise; that evidence
is uncontroverted. 	I therefore conclude that the University’s
policies governing students, faculty, and staff are within its
authority to govern academic affairs.
¶74 	My conclusion on this point says nothing about whether
the policies at issue are reasonable exercises of the
University’s authority. 	As I perceive it, the issue before us
today is which governmental entity--the University or the
legislature--has the authority to make such policies, not whether
the policies themselves are advisable or constitutionally sound.
The University’s academic interests must be weighed against
individual constitutional rights where these rights are properly
invoked. 	A policy that prohibited students and employees from
openly brandishing firearms in classrooms would clearly be
legitimate. 	Although I express no ultimate opinion on the
matter, it is less immediately clear whether the current
policies, which prohibit firearms that are hidden in a student’s
purse or an employee’s desk, would survive an individual’s
constitutional challenge.
¶75 	The majority fails to recognize the University’s
authority to establish any policy whatsoever relating to on-
campus firearm possession by its students and employees. 	Under
its analysis, the University may not subject a student to

33 	No. 20030877
academic discipline for flashing his pistol to a professor in
class. 	Because I believe the majority’s conclusion is
inconsistent with the authority that the state constitution
grants the University as a corporate entity, I respectfully
dissent.
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