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Carlson: Legislature will fight higher ed board at N.D. Supreme Court over nickname law

Rep. Al Carlson, R-Fargo and author of the revived law requiring UND to keep its Fighting Sioux nickname, said Tuesday that the law is constitutional and the Legislature will defend it if the State Board of Higher Education challenges it in the s...

House Majority Leader Al Carlson, R-Fargo
House Majority Leader Al Carlson, R-Fargo

Rep. Al Carlson, R-Fargo and author of the revived law requiring UND to keep its Fighting Sioux nickname, said Tuesday that the law is constitutional and the Legislature will defend it if the State Board of Higher Education challenges it in the state Supreme Court.

The state board on Monday asked Attorney General Wayne Stenehjem to challenge the law.

"We were not looking for a fight, but we will defend our rights as a co-equal branch of the government," Carlson, the House majority leader, said. "The Constitution created three co-equal branches of government, not four. The State Board of Higher Education is not above the law."

Grant Shaft, president of the state board, said it was unfortunate that Carlson "didn't listen to the extensive testimony" Shaft offered during hearings as to why UND was proceeding with the transition.

"We are in the position we're in today because Rep. Carlson introduced a bill last session that has caused a very disruptive situation with UND athletics," he said.


The state board did not take a position on the proposed law when it was before the House, preferring to let the legislative process take its course. But Shaft did touch on the constitutional question when he testified against the bill in the Senate.

The law was passed by big majorities during the regular session, but it was repealed -- again by large majorities -- after state leaders failed to persuade the NCAA to relent on sanctions threatened against UND if it failed to drop the name.

The filing of petitions last week to put that repeal to a statewide vote had the effect of reinstating the law and, temporarily at least, restoring the nickname.

"This is a big issue," Carlson said Tuesday. "It sets the stage for us if we decide to do something with tuition or scholarships or something, and the board says we don't want you to do that so we're going to challenge you in court.

"The board is subject to statutory and constitutional limitations," he said. "We will make sure the Legislature is adequately represented at the Supreme Court."

As attorney general, Stenehjem is the primary attorney for both the state board and the Legislature. As he explained to board members during their meeting Monday, he would have to secure outside counsel to represent one party or the other.

"We would be involved with who that outside counsel will be," Carlson said. "We'll find ourselves a good constitutional lawyer."

Carlson said the challenge, possibly derailing the June 12 primary referendum on the nickname law, "is slapping the citizens of North Dakota right smack dab in the face."


He said the board "should have done it back in March if they thought the law was unconstitutional. The best thing now would have been to let the people vote."

Question of timing

Why press the constitutional issue now? Why not earlier?

"You certainly want to avoid litigation, especially with something of this magnitude," Stenehjem said Tuesday.

Throughout the past year, "Everybody was hoping there might be some resolution to this without it being a full-blown constitutional issue between the State Board of Higher Education and the Legislature," he said.

Shaft added, "This is the first time it would appear we (UND) are postured for long-term sanctions" if the controversy continues, so the board felt compelled to act.

The question has been raised frequently over the past 12 months, including by House Democrats during the initial legislative debate and, in July, by two UND faculty members.

"After reading the Century Code's description of the power of the state board, we're at a loss as to why the board members have not yet challenged the legislative infringement," professors Thomas Petros and Donald Poochigian wrote in a letter to the Herald.


On Monday, Kylie Oversen, student body president at UND, also questioned why the challenge only comes now. "I think they were a little late to the game," she said of board members after they asked Stenehjem to take the issue to the court. "Same with the attorney general."

On Jan. 11, 2011, Stenehjem visited with Carlson and Rep. Reed Monson, R-Osnabrock and a former House speaker, "just to give them a heads up," he said at the time. "There is an obstacle for them (with their bills), and I think they know that."

The North Dakota Constitution "includes a provision that says the State Board of Higher Education shall have full authority over the institutions under its control," he said. "The authority they have on this question ... is rather extensive. So that's going to be a real obstacle to overcome in legislation."

Stenehjem said he liked the nickname and logo, "but I like the Constitution more."

But neither the state board nor Stenehjem pushed that argument as the bills were heard in the House Education Committee. Stenehjem didn't testify, and Shaft used his time before the committee primarily to review steps the board had taken to seek nickname approval from the Spirit Lake and Standing Rock Sioux tribes.

That approval was a requirement of the 2007 legal settlement Stenehjem had negotiated with the NCAA. The state's failure to secure Standing Rock's blessing by a November 2010 deadline led to the NCAA placing UND on sanctions and UND -- at the state board's direction -- beginning a retirement of the Fighting Sioux name and logo.

Would NCAA bend?

Stenehjem said Tuesday that he and other state leaders wanted to let the process play out to see whether the NCAA would bend in its position on UND and the Fighting Sioux nickname.


"I made no secret of the point there were serious constitutional hurdles," he said. "But the Legislature passed the law, which took effect Aug. 1. The sanctions didn't occur until Aug. 15.

"It was in July that everybody agreed we should travel to Indianapolis and meet with the NCAA leaders to see if the enactment (of the nickname law) made any difference. We learned from the NCAA that they were not going to back off from the policy, that the settlement was the agreement we had. UND had to change the nickname or suffer the consequences."

Leaving that meeting, the governor and other state leaders agreed they would have to repeal the law, Stenehjem said, "and the Legislature did exactly what Rep. Carlson and the others said they would do and repealed the law. That brought us up to December" and the nickname supporters' petition drive to put the nickname to a statewide vote.

Stenehjem said that he discussed the constitutional issue with Shaft early in the 2011 session, but he was not asked to testify concerning his assessment.

"I had already made clear what that problem was," he said. "And I'm always reluctant to go in and testify to those committees" about how a particular proposed law stands up to constitutional review. A law passed by the Legislature begins with a presumption of constitutionality, "and one day I might have to go into court and defend it," he said.

"I talked with legislators about constitutional issues I thought were there. But the decision to assert the constitutional authority of the State Board of Higher Education belongs in the first instance to the board.

"I know a lot of people are unhappy with the way this has gone," he said. But "now the court will make a ruling as they see fit and everyone will have done his job."

Reach Haga at (701) 780-1102; (800) 477-6572, ext. 102; or send email to chaga@gfherald.com .

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