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Published March 02, 2012, 05:25 PM

Fighting Sioux Legal Fight Has Broader Impact

BISMARCK, N.D. (AP) — North Dakota's Board of Higher Education doesn't want to subvert the Legislature's authority by attempting to disqualify a law that requires the University of North Dakota's teams to be called the Fighting Sioux, two officials said Friday.

By: Dale Wetzel, Associated Press

BISMARCK, N.D. (AP) — North Dakota's Board of Higher Education doesn't want to subvert the Legislature's authority by attempting to disqualify a law that requires the University of North Dakota's teams to be called the Fighting Sioux, two officials said Friday.

Separately, a supporter of the university's nickname and American Indian head logo said the board's stand has given momentum to a possible ballot initiative that would replace the board with an elected higher education commissioner.

"With the current board, there is no accountability," Sean Johnson, of Bismarck, told a legislative higher education oversight committee on Friday. "We need to have accountability, and we don't have it."

Johnson is a member of a citizens' committee that campaigned for a June referendum vote on the Fighting Sioux law. The Board of Higher Education contends the law is unconstitutional, and it has asked the North Dakota Supreme Court to block it from coming to a public vote.

The high court has allowed nickname supporters and the Legislature to intervene separately in the case.

Rep. Al Carlson, R-Fargo, the House majority leader, said if the Supreme Court endorses the board's legal arguments it will cripple the Legislature's power to regulate North Dakota's university system.

The Board of Higher Education, which is part of the North Dakota Constitution, was established by a voter initiative in 1938 in response to then-Gov. William Langer's decision to sack seven professors at the state agricultural college, which is now North Dakota State University.

The constitution says the higher education board was established for "the control and administration" of the state's public colleges, and that it has "full authority over the institutions under its control."

John Bjornson, an attorney for the Legislative Council, the Legislature's research arm, said the board's Supreme Court filings argue that the Legislature's power over the higher education system does not extend much further than deciding how much money to spend on its 11 public colleges.

If the Supreme Court sides with the board, lawmakers may not be able to dictate where college buildings are built, whether professors should be required to be fluent in English, or whether smoking should be allowed on campuses, Bjornson said, naming three examples of state laws that affect the board and university system.

The lawsuit "raises the bigger question, where does your authority begin and end?" Bjornson told the committee's lawmakers. "Does it just begin with appropriating money, and end there, or is there some other point anywhere in between?"

Grant Shaft, the president of the Board of Higher Education, and Pat Seaworth, the state university system's top attorney, said Friday the board's challenge of the Fighting Sioux law was not intended as a broad assault on legislative prerogatives.

"What the board is asking for is that the Supreme Court declare (the Fighting Sioux law) and the referendum measure unconstitutional. Period," Seaworth said. "No more, no less."

Johnson said he thinks the board should be replaced by an elected higher education commissioner, who would be in charge of drafting the university system's budget recommendations and would have power to hire and fire college presidents. He or she would be elected for six years and could not serve more than two terms, he said.

Supporters of the idea are drafting a voter initiative and hope to get the question on the November ballot, Johnson told the committee lawmakers.

Some legislators said they were uncomfortable with the idea of electing one person who would be responsible for North Dakota higher education. It would be better to allow the governor to appoint a higher education commissioner, said Rep. RaeAnn Kelsch, R-Mandan, the chairwoman of the North Dakota House's Education Committee.

"I do think that it makes it very political," Kelsch said of having an elected commissioner. "What you really want is a leader that you seek out ... . That's why I see an appointed position being better, because they're serving at the will of the governor, and it's much easier for the governor to fire than it is to get a recall."

North Dakota's current Board of Higher Education has eight voting members. It has power to hire and fire college presidents and to set policy for the state's university system.

The Legislature's Higher Education Committee, which is developing proposals for the 2013 Legislature, is studying a separate constitutional amendment that would abolish the board and give the governor authority to appoint a higher education commissioner.

The amendment would replace the Board of Higher Education with an 11-member advisory council. Its members would be appointed by the governor and vetted by a committee of five legislative leaders.

The amendment is similar to a proposal Carlson introduced in the 2011 Legislature. His amendment sought to replace the Board of Higher Education and the state superintendent of public instruction, who is elected, with a Department of Education, whose leader would have been appointed by the governor. The amendment was defeated in the North Dakota Senate.


Copyright 2012 The Associated Press.

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