EVANSTON — Attorneys representing Uinta County School District No. 1 and Evanston residents Tim Beppler and Monica Vozakis presented oral arguments in Third District Court on the morning of Wednesday, Aug. 29, in the suit filed against the school district over the recently-adopted policy CKA that allows for approved employees to carry concealed firearms in district schools.
Judge Nena James of Sweetwater County presided over the hearing. James assumed the case after the school district asked in July for Third District Court Judge Joseph Bluemel not to hear the case. Geoff Phillips represented the district and Sharon Rose represented plaintiffs Beppler and Vozakis.
The plaintiffs have filed the suit asking the policy to be declared null and void, alleging the district failed to follow proper rulemaking procedures required by the Wyoming Administrative Procedures Act (WAPA), and have also requested an injunction requiring the district to immediately cease implementation of the policy. The district maintains proper procedures were followed.
There are several legal concepts at issue in the case, including legislative intent, whether the district as a local agency is exempt from some requirements of WAPA and the difference between an interpretive and a substantive rule. For local agencies, the creation of substantive rules requires adherence to WAPA rulemaking procedures while interpretive rules do not.
In her opening comments, Rose said the district has “gone full bore” with the policy and “forged forward knowing the suit was pending.” She said parental rights have been impacted because the district has denied requests to place students in classrooms without guns and teacher First Amendment rights have been impacted because they are under a “gag order” and have been precluded from discussing whether they are carrying.
The plaintiffs argue this impact on parental and teacher rights support their claim the policy is a substantive rule because by definition a substantive rule is one that changes existing rights and obligations. Rose said policy CKA has “certainly had a significant impact on student rights, parental rights and teacher rights.” She continued, “The district hasn’t disputed this impacts parental rights. They chose to focus on rights of concealed weapon holders over parental rights.”
Rose argued the district is required to follow a formal rulemaking process, which includes examining data and evidence and providing a rational basis for any new rules. She said the district has never presented evidence supporting the policy, while the plaintiffs have submitted extensive research against the use of firearms in schools.
“We don’t dispute the need to ensure the safety of children,” Rose said. “We do dispute that guns are the way to do that.”
The plaintiffs argued that the Wyoming Legislature could have simply amended legislation to do away with “gun-free school zones,” but chose instead to create entirely separate legislation in W.S. 21-3-132 allowing school districts to adopt “rules and regulations” regarding concealed carry of firearms by staff. They argued that action and specific language showed clear intent on the part of the legislature for districts to follow the rulemaking process.
“We don’t dispute the board of trustees has the authority to adopt rules, regulations and policies,” Rose said, “but WAPA applies, and they have to follow it.”
In his comments on behalf of the school district, Phillips said the board of trustees began the process of drafting and implementing policy CKA in 2017 after the legislature passed W.S. 21-3-132.
“The trustees immediately determined this was something they wanted to pursue,” he said.
Phillips said the policy was drafted using guidance documents from the Wyoming Department of Education (DOE) and the Wyoming School Board Association (WSBA), and said the DOE document acknowledged there were legal questions regarding WAPA requirements for districts looking to adopt a concealed-carry policy. He said the DOE recommended districts consult with their attorneys while moving forward.
Phillips said the district relied heavily on documents provided by the WSBA, which most school districts in Wyoming do for many policies.
“Almost all policies have been adapted from the WSBA,” he said.
Phillips said the real question in this case is whether policy CKA amounts to an interpretive or a substantive rule, which he said is a “blurry and fuzzy” difference but there are two criteria that provide the basis for that determination. He said a key distinction is that substantive rules have a legal binding effect, while interpretive rules do not have a legal binding effect and leave decision makers free to use discretion.
The district argued that, while rights and obligations were impacted, it was actually the legislature that impacted those rights when they passed the legislation and not the district itself.
“All obligations were created by the statute itself,” said Phillips. He also said the policy leaves administration and the board of trustees free to exercise discretion in approving staff members to carry firearms.
“Policy CKA takes the enabling statute and incorporates it and leaves the board free to use discretion. That is the definition of an interpretive policy,” said Phillips.
The issue over substantive and interpretive rules is the primary argument the case hinges on, according to Phillips, and he expressed his belief that the issue will ultimately end up before the Wyoming Supreme Court.
“When this goes before the Supreme Court, and I’m assuming it will,” he said, “this difference between interpretive and substantive rules will be the biggest, key issue.”
Although the district maintains the policy is an interpretive rule, Phillips said even if it’s determined by the courts to be substantive, the court should still rule in the district’s favor because, even though not legally required to do so, the district “substantially complied” with WAPA requirements by allowing public participation in the policy-creation process and by providing the public with ample notice of their intent to move forward.
Phillips also asked Judge James to deny the injunction request because it would be the district and not the plaintiffs that would suffer irreparable harm if not allowed to implement the policy. Phillips referred to national headlines regarding gun violence and schools, as well as to the June incident in Third District Court in which a prisoner was able to disarm a deputy. He said there is no perfect answer to the problem, but “the board and the district are committed to ensuring safety and the district has adopted CKA because they cannot compromise anyone’s safety.”
He said an injunction would harm the district if anyone were to be harmed in an incident and would also harm the democratic process.
“The plaintiffs are seeking to undermine the democratic process through some sort of technicality,” he said. “The legislature and the trustees are elected by the people.”
In her rubuttal, Rose said the plaintiffs are upholding the democratic process by requiring the district to follow the rule of law. She also argued the incident in the courtroom actually supported their argument that a classroom was no place for guns and demonstrated how easily a student could overpower an armed staff member.
At the conclusion of arguments, Judge James said the case had been “very well briefed by both sides” and acknowledged the likelihood of the suit eventually ending up before the Wyoming Supreme Court.
“This is potentially the beginning of a very long road,” she said. “This is a really important case and I need to issue a well-crafted letter. I need to make sure the basis is understood by the public and both sides. It’s important to the citizens of Uinta County and the entire state. I’m very cognizant of that.”
James said she would issue her decision in the case by Sept. 14.