Benny Baker
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Posts posted by Benny Baker
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Precisely. No, you're not.
I am clearly missing my ability to use the correct form of the word "your." But, thanks for the answer because I've never seemed to get an explanation as to this question.
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And how would a potential amendment survive the contracts clause in the US constitution?
And you didn't answer my question from above.
Can you explain you're opinion on the contracts clause issue? I thought the Supreme Court said the settlement was not a contract as it merged with the final judgment. I'm obviously confused about something.
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Didn't the Supreme Court dispose of the issue when it stated that because the settlement agreement merged into the final judgment that this was no longer a contract, but rather a court judgment? Or does the contracts clause apply to court judgments as well?
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You are correct, I was combining some history in my mind. I guess it's a sign of age. It was the Governor and the Board of Administration that fired the President of the ag school and 7 professors in 1937, which caused the school to lose its accreditation. The Governor personally hired the President of UND in 1933 without any input from the BoA. The SBoHE was put in place to have some form of checks and balances and put at least a little buffer between higher education and direct political control. But I still believe that the SB is needed to keep the legislature from trying to take too much control of every detail of higher education.
Absolutely agree. I have my concerns with the legislature's decision-making as well.
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The ND SBoHE is a leasee of the hockey arena facility.
What the state did in naming the arena is the equivalent of passing a law stating my home shall be known as "Casa Sicatoka" under state law. The ND SBoHE would have nothing to say about that either. But "Casa Sicatoka" does have a nice ring ...
So it's fine if the legislature determines the proficiency of the faculties' English? It's fine that the legislature determined the size of property upon which UND's alumni building sits? It's fine that the legislature caps the SBHE's student fee increases? It's fine that the SBHE needs legislative approval to improve or construct university buildings even with non-public money? It's fine that the legislature, and not the SBHE, created UND's child welfare research bureau, nursing education consortium, and many more programs?.... Because these are all written into statute exactly like the nickname legislation.
This does not even begin to cover the amount of statutory law, which limits the State Board's power. Now, the nickname law may very well be unconstitutional. But if that is the case, so are many of our other laws.
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And a major reason the SBoHE was created was to put another layer between the schools and the legislature. The legislature was trying to micromanage the schools, going as far as trying to fire the President of the ag school and trying to dictate classes. The SBoHE is needed to keep the legislature from trying to control every detail of education.
Not true whatsoever. Direct legislative control of higher education ended in 1913. The State Board was created in 1939 to replace the Board of Administration, which was filled by gubernatorial appointments without legislative ratification. Now, membership to the state board requires the Senate's approval. In fact, the State Board was established to further the legislature's presence.
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[¶17] Under N.D. Const. art. VIII, § 5, all North Dakota land grant universities and universities supported by a public tax shall remain under the absolute and exclusive control of the State. The Board is the constitutionally established entity for the control and administration of state educational institutions, including UND.
Hasn't the North Dakota Supreme Court already answered the question? Is there any reason to believe that the court will give a different answer the second time around?
Yes, this is what should be referenced by those who believe the law is unconstitutional. The concern with this approach, however, is that the above-quoted statement was not the holding of the case, but rather dicta that the court is not bound to follow. In essence, the question of who controls the nickname was not an issue before the Court as the case dealt with interpretation of the settlement agreement. The constitutional issues were not briefed for the Court in the Davidson case. Given more legal and factual background, the Court could come to an entirely different conclusion. But you're correct insofar as this case being the best argument for the law's unconstitutionality.
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Many people believe that the law that was made last spring requiring the use of the Fighting Sioux nickname is unconstitutional. The North Dakota Constitution says that SBoHE is responsible for all aspects of higher education other than the funding. They believe that the legislature making a law about a school nickname oversteps that boundary. The SBoHE is going to decide whether they want to take the question to the court system to decide if the law is legal. The Constitution outranks any law that the legislature makes.
And some people believe the SBHE is responsible for many aspects of higher education subject to numerous limitations. As stated, the legislature can name the hockey arena but not the hockey name?
15-11-38. Ralph Engelstad arena.
The hockey arena constructed on the campus of the university of North Dakota with funds
donated by Ralph and Betty Engelstad is officially named the Ralph Engelstad arena.
15-10-13.1. Faculty - English language proficiency.
Any professor, instructor, teacher, assistant, or graduate assistant at a state institution of
higher education must exhibit written and verbal proficiency in the English language. Any
deficiency must be remedied by special training or coursework provided by the institution.
So the SBOHE is fine with having the legislature choose the name of UND's hockey arena, but they're going to challenge the legislature's choice of the hockey team's name?
But the legislature also mandates that faculty members speak and write English to a proficient degree. For anyone familiar with the Century Code, they would also be aware of the fact the the legislature limits the SBOHE's student fee increases; requires the SBOHE to seek its approval when improving university land and infrastructure in several situations; and created multiple programs and consortiums at institutionals all throughout the state without the backing of the SBOHE. This isn't even the tip of the ice berg, in fact, our state has multiple chapters of statutes that limit the SBOHE's supposed autonomy.
For those of you unaware of the history, the SBOHE was created because its predecessor, the board of administration, was free of legislative oversight. Now the Senate must confirm the governor's appointments to the SBOHE.
So indeed, there are "stautory limits" far beyond reorganizing an institution elsewhere. Such as choosing the name of the hockey arena, mandating english-proficient teachers, and perhaps even mandating a school nickname
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I tend to view the constitutional amendment as the weaker of the two measures due to its bland, nondescriptive text, and more easy to finesse than Carlson's Folly. it also runs headlong into the Board's own constitutional authority.
The board's constitutional authority is limited. An amendment to the constitution would simply act as another limitation. The constitution references statutory limitations that the Board must follow as well.
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What a mess this has all become, how can the nickname supporters not see that this is ultimately going to be a death sentence for the University's athletic programs?
Not being able to schedule your biggest rival (UM) in your most popular sport would crush support for that program.
UND hockey fans major interest from my perspective has always been that they see the premier hockey programs in the nation at Engelstad each week. Without that there aren't many "sexy" names on the schedule to get excited about.
Awful. I am sincerely upset that UND has to deal with this BS.
There is absolutely no way on Earth that UND will have home series against Minnesota and Wisconsin at the Ralph every year. And the reason is because of the Big Ten Hockey Conference. The hockey issue has waaay more to do with realignment than with the nickname.
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I agree, this is an interesting provision. But I'm having trouble reconciling a few things.
From the ND Century Code:
15-11-38. Ralph Engelstad arena.
The hockey arena constructed on the campus of the university of North Dakota with funds
donated by Ralph and Betty Engelstad is officially named the Ralph Engelstad arena.
15-10-13.1. Faculty - English language proficiency.
Any professor, instructor, teacher, assistant, or graduate assistant at a state institution of
higher education must exhibit written and verbal proficiency in the English language. Any
deficiency must be remedied by special training or coursework provided by the institution.
So the SBOHE is fine with having the legislature choose the name of UND's hockey arena, but they're going to challenge the legislature's choice of the hockey team's name? Really?
But the legislature also mandates that faculty members speak and write English to a proficient degree. For anyone familiar with the Century Code, they would also be aware of the fact the the legislature limits the SBOHE's student fee increases; requires the SBOHE to seek its approval when improving university land and infrastructure in several situations; and created multiple programs and consortiums at institutionals all throughout the state without the backing of the SBOHE. This isn't even the tip of the ice berg, in fact, our state has multiple chapters of statutes that limit the SBOHE's supposed autonomy.
For those of you unaware of the history, the SBOHE was created because its predecessor, the board of administration, was free of legislative oversight. Now the Senate must confirm the governor's appointments to the SBOHE.
So indeed, there are "stautory limits" far beyond reorganizing an institution elsewhere. Such as choosing the name of the hockey arena, mandating english-proficient teachers, and perhaps even mandating a school nickname.
But hey, it all turns into a crapshoot when it goes to court.
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Wisconsin and Minnesota have been long time rivals in hockey. They will be playing in another conference starting in 2013. Neither will play UND with the Fighting Sioiux nickname when they are in a different conference. Yes, the conference affiliation is huge. Losing Wisconsin and Minnesota as opponents in hockey will also be a large issue. And there is nothing to prevent more schools from adopting the same policy.
Since Lucia and UMN have had a noncomittal stance regarding UND hockey ever since the BTHC conference was created, don't assume this is entirely a nickname issue. The Gophers are committed to playing Notre Dame for four years. Why didn't UMN sign up to play North Dakota after we all thought the nickname controversy was over? It'll be interesting to see everyone's reactions when UND changes the name back to nothing and the school is still not playing the gophers in hockey.
And no, their is nothing to prevent other schools from adopting this position, but I'm not going to assume that the 350 Division 1 schools in existance are all going to collectively adopt this same position. Remember Al Carlson was wrong in his assumption that the state law would change the NCAA's stance.
Losing hockey rivalries will be unfortunate. But UND may lose those regardless of the nickname. Other than that, screw Minnesota, Iowa, and Wisconsin. The Big Sky is infinitely more important.
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God forbid North Dakota doesn't get to play Iowa and Minnesota in athletics. It'll be the end of UND's athletic program as we know it. Who is going to take UMN and Iowa's place since they've been yearly opponents and supporters of UND's program for so long . . . oh, wait . . .
I think UND will be just fine not playing institutions that they've haven't played in decades.
The bigger issue is conference affiliation.
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The Constitution makes the SBOHE autonomous? Don't think so. Would it be unconstitutional for the legislature to decide the name of UND's hockey arena? Would it be unconstitutional for the legislature to choose the language proficiency of UND's faculty, too?
What Needs to Happen
in UND Nickname
Posted
[¶13] The parties have postured their argument as an issue about contractual interpretation. When a settlement agreement is merged into a judgment, however, the agreement is interpreted and enforced as a final judgment and not as a separate contract. <a href=http://www.ndcourts.gov/court/opinions/20060037.htm">Silbernagel v. Silbernagel, 2007 ND 124, ¶ 10, 736 N.W.2d 441; Thomas v. Stone, 2006 ND 59, ¶ 11, 711 N.W.2d 199; Sullivan v. Quist, 506 N.W.2d 394, 399-400 (N.D. 1993). Although the actual judgment dismissing the prior action by the Board and UND against the NCAA is not part of the record in this case, the order for judgment of dismissal in that action is part of this record and says that "[e]ach of the claims set forth against [the NCAA] are dismissed with prejudice on the terms set forth in the Settlement Agreement, incorporated herein by reference."
http://www.ndcourts.gov/_court/opinions/20100022.htm
Is this simply and issue of how the court interpreted the settlement or determining the specific legal status of the settlement?
I view the settlement as being and "either or." In other words, UND chose to live with the terms of the settlement; they'll face the sanctions. Although I completely agree that this what probably not the idea of what the NCAA had in mind.