Georgia Campus Carry Rules Upheld Against State Constitutional Separation of Powers Challenge

From today's unanimous Georgia Supreme Court decision in Knox v. State, written by Justice Ellington:

Five University System of Georgia ("USG") professors filed suit to block a 2017 statutory amendment that removed public colleges and other public postsecondary educational institutions from the statutory definition of "school safety zone." Before the 2017 amendment, carrying or possessing a weapon on any real property or in any building owned by or leased to any postsecondary educational institution was a misdemeanor, and the 2017 amendment decriminalized that conduct. The professors alleged that, as a result of the 2017 amendment, the Code requires the Board of Regents, the USG, and USG institutions to permit persons to carry or possess weapons on the campuses of public postsecondary educational institutions, contrary to longstanding USG policies.

The professors sought a declaration that the statutory amendment is unconstitutional as applied because it usurps the Board's constitutional authority to govern, control, and manage the USG and its member institutions…. In the complaint, the professors articulated in detail reasons they believe that the revised policy regarding the carrying of weapons on USG campuses, following the 2017 statutory amendments, greatly increases the risk of injury and death to themselves, their students, and other persons on USG campuses, and significantly impairs their ability to fulfill their role in the educational mission of the USG…. The professors alleged that they are injured by what they deem a "separation-of-powers violation."

No, said the court, because the Georgia Board of Regents had itself changed its policies in response to the 2017 amendment:

[A]fter years of opposition by the Board and USG institution leaders to proposed "campus carry" legislation, the General Assembly in 2017 amended the definition of "school safety zone" to remove the criminal penalties for carrying weapons on college campuses, with several exceptions…. [But a]fter the governor approved HB 280, the Board's chancellor provided guidance to USG institutions to "implement the law as written" and called for each institution to "review its campus conduct and weapons policies to ensure that they comply with these changes to the law." The Board of Regents then amended its Policy Manual and adopted a weapons policy, applicable to all USG institutions, that largely mirrored the 2017 statutory amendments ….

[The professors argue] that, "[a]s a matter of law, a separation-of-powers violation is not mooted by the fact that the encroached-upon entity has acquiesced—or even affirmatively approved of—the encroachment." …

The professors acknowledge the absence of Georgia precedent for this principle and cite as persuasive authority several United States Supreme Court cases. But even assuming we found these federal cases persuasive, they do not lead to a conclusion in this case that the professors' claims are not moot. These federal cases share a common thread that does not run through this case. In those cases, a legislative act challenged on separation-of-powers or Tenth Amendment grounds directly caused the harm complained of, such that some indication of agreement with the legislative act by the allegedly-encroached-upon entity could not moot a challenge to the legislation. Here, in contrast, the Board formally took its own action to adopt a particular policy, and it is this policy, not any legislation, that is causing the state of affairs about which the professors complain.

In determining that this action by the Board moots the professors' challenge to the 2017 amendment, we do not concern ourselves with why the Board took this action. We do not look behind the exercise of government power to determine the subjective reasons—legal, political, or otherwise—for a particular action, so long as the action was within the government actor's authority. Indeed, it is difficult to conceive of a significant executive- or legislative-branch action where the knowledge of the positions of various other governmental actors will not factor into the decision.

Here, what matters is not why the Board adopted the policy in question, but merely that it did do so. Granting the only relief the professors seek—a declaration that the 2017 amendment to OCGA § 16-11-127.1 constituted a separation-of-powers violation—would not eliminate the harm of which the professors complain, because it would not eliminate the immediate source of that alleged harm—the weapons policy adopted by the Board. That this sought-after relief would not redress the professors' stated grievance means that this case is moot….