Private property or semi-private property, you can’t have it both ways.
In terms of real property, most people would agree that private property can be subdivided into two subcategories; 1) property owned solely for personal use such as one’s home or lake house; and 2) property used for business purposes such as a store, auto repair shop or movie theater. Texas has a long standing tradition of providing sweeping protection to owners of private use property, while allowing greater regulation of property held for business purposes. The rationale is that the government should have minimal control over a citizen’s use of real property that they purchased with their own money and on which they pay taxes to multiple taxing authorities. Texans jealously guard “private property rights” and rightfully so.
Since this article focuses on carrying self-defense handguns on college and university campuses, it would be helpful to acknowledge that even among strong Second Amendment supporters, opinions vary as to how much governmental control should be exercised over private property. Some feel that there should be no difference between permissible regulation of one’s home and one’s business. Others feel that private property rights can be respected while allowing greater governmental control over business property that is open to the public, based upon the State’s interest in the safety of its citizens. Very strongly held opinions on both sides of this issue can be found among Texans.
SB11 is the Bill that will make it legal for Texas Concealed Handgun Licensees (CHL) to carry self-defense handguns in college and university buildings (it is already legal to carry them on campus outside of buildings). The current version of the Bill provides an opt-out provision for private schools and this is being used by opponents of SB11 to argue that state-supported colleges and universities should have this same option. This opt-out provision will allow private colleges and universities to decide not to allow their students who are CHLs to carry handguns on the property. As noted above, even among strong Second Amendment supporters there is a strong difference of opinion as to whether an opt-out provision should be available to private schools. (The issue of an opt-out option for public schools has already been covered in another article. (See, Board of Regents & Chancellors Should Have No Say in Campus-Carry.) The question addressed in this Article does not revolved around whether an opt-out provision for private schools is warranted. Rather, it assumes that the opt-out provision is reasonable and warranted and deals with the question “how should a private college or university be defined?”
It must be acknowledged that it is quite likely that a campus-carry bill will not pass in 2015 unless it has an opt-out provision for private schools. Nevertheless, there is a strong argument that the definition of “private college or university,” at least for purposes of campus-carry, should be such that it is truly a private institution with no financial, regulatory or other state or federal governmental benefits that are not available to every other private business in Texas. The following definition is suggested. A private college or university is one that does not 1) directly receive public money in any form; 2) receive any tax benefits from any taxing authority, including but not limited to the Internal Revenue Service; 3) receive any property or benefits from any governmental agency; or 4) have a police force.
When the federal Jeanne Clery Act was passed requiring all colleges and universities to accurately report crimes on campus, private schools unsuccessfully fought to be exempted from the new law. Congress correctly decided that every college and university has a duty to its students and their parents to accurately disclose the true dangers students face on campus, rather than promote their Utopian version of campus life. If colleges and universities in Texas want to continue to force their adult students to be defenseless when attacked under a claim of “private property rights,” then they should be truly private, not semi-private. If they want no guns on campus, then they get no special benefits from state or federal government.