Wade v. University of Michigan, SC: 156150 (Mich. Nov. 6, 2020)

On March 1, 2021, the AAUP joined an amicus brief with Brady: United Against Gun Violence (formerly the Brady Center) and Team ENOUGH filed in the State of Michigan Supreme Court in support of an appeal affirming that the University of Michigan’s prohibition on firearms does not infringe on Second Amendment rights. The brief argues that the university’s firearm prohibition furthers its compelling and critical interest in maintaining an environment that safeguards the free speech and academic freedom interests of university faculty to research and teach controversial topics and advance the university’s core institutional objectives and the students’ ability to freely exchange ideas, engage in political or issue activism, and peacefully protest on the university campus.  

The case stems from a 2001 campus carry ordinance, Article X, adopted by the university prohibiting individuals from possessing firearms on university property. In September 2014, plaintiff Joshua Wade applied to the university’s director of public safety and the chief of police for waivers of the ordinance’s terms that prohibited him from carrying a firearm on university property. Both requests were denied. Plaintiff Wade filed the pending lawsuit alleging, inter alia, that the ordinance violates the Second Amendment to the US Constitution. The university moved for summary disposition arguing, inter alia, that Wade’s Second Amendment claim failed because the US Supreme Court, in the 2008 District of Columbia v Heller decision, held that there is no Second Amendment right to possess a firearm in sensitive places, including schools. Because no such right exists, a school prohibition on firearms possession cannot and does not violate the Second Amendment. The lower court agreed with this argument and ruled in favor of the university holding that the ordinance is “presumptively lawful” under Heller and its progeny. Wade appealed. The appeals court affirmed the lower court decision and dismissed Wade’s complaints. The case is currently before the Michigan Supreme Court.

The amicus brief was prepared by a private law firm, but the AAUP contributed to a section of the amicus brief that explicitly addresses academic freedom, AAUP policies, and concerns of faculty. (Section II, pg.10–13). This section argues that the university’s prohibition serves the “critical interest of academic freedom by protecting faculty speech and furthering the University’s core educational goals.” The freedom to teach includes “the right of the faculty to select the materials, determine the approach to the subject, make the assignments, and assess student academic performance. . . . There is widespread concern among university faculty that allowing guns on campus would threaten this freedom and force them to alter their curriculum and important classroom discussions.”  The brief also cites the 2015 joint statement—by the AAUP, the American Federation of Teachers, the Association of American Colleges and Universities, and the Association of Governing Boards of Universities and Colleges—opposing campus carry laws and arguing that “students and faculty members will not feel comfortable discussing controversial subjects if they think there might be a gun in the room.”

The amicus brief also argues that the gun prohibition furthers the university’s compelling and critical interest in maintaining an environment that safeguards First Amendment interests of students and faculty and promotes the university’s ability to promote innovative scholarship and productive instruction. “Freedom of speech is a bedrock principle of [the University’s] academic community,” it states. “Article X safeguards this principle and advances these critical University interests.

UPDATE: On July 20, 2023, the Michigan Court of Appeals issued a decision upholding the university’s ordinance. The court concluded that public colleges and universities are “schools” within the meaning of the US Supreme Court’s Second Amendment case law and thus “sensitive places” where firearm possession can be lawfully restricted or prohibited. The court noted the amicus brief that the AAUP joined and the brief’s argument that the university’s ordinance “protects speech and the free exchange of ideas and furthers the University’s core educational goals.”