A NDSC ruling in favor of the SBOHE could benefit all Higher Ed.

[ScottM]

Scott, Philly,

If the contract clauses is the better tactic, is that for just this first issue (reinstatement of Carlson's Folly), or would it apply to the drive to amend the ND Constitution as well?

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.

[82SiouxGuy]

That is what I would have thought. It has to be an honest to God tribal vote before the NCAA would even consider backing down. Even if that would happen, would they just say it's too late? That it was beyond the agreement period?

Sorry, but the NC$$ is full of asshats that don't play nice with others.

The settlement doesn't mention a vote, so the NCAA never cared about whether the tribe voted. They weren't going to accept a tribal vote on the issue. It had to be the Tribal Council. And you are correct. It is too late. The NCAA was asked during the big meeting in August whether they would accept a change by Standing Rock. The NCAA said that the settlement specifically said that they had to have approval by November 30, 2010. That did not happen. It is too late. The NCAA will not accept UND using the Fighting Sioux nickname or logo. They are not going to back down or change their mind.

[Fetch]

If a SR vote is overwhelming yes for the Sioux name & the ncaa ignores it then I say 100% to HE!! with them

I have drove thru Sioux County & there is not much else, if anything, but SR Tribe there

[Hayduke]

The settlement doesn't mention a vote, so the NCAA never cared about whether the tribe voted. They weren't going to accept a tribal vote on the issue. It had to be the Tribal Council. And you are correct. It is too late. The NCAA was asked during the big meeting in August whether they would accept a change by Standing Rock. The NCAA said that the settlement specifically said that they had to have approval by November 30, 2010. That did not happen. It is too late. The NCAA will not accept UND using the Fighting Sioux nickname or logo. They are not going to back down or change their mind.

True.

If the name is to stay, it would have to be through a lawsuit from a 3rd party, like the SL tribe has started with the NC$$. UND/SBOHE/North Dakota state government all have to stay out of it in order to protect UND's standing with the Big Sky and the NCAA. Seems simple enough, doesn't it?

[Benny Baker]

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.

[dmksioux]

If a SR vote is overwhelming yes for the Sioux name & the ncaa ignores it then I say 100% to HE!! with them

I have drove thru Sioux County & there is not much else, if anything, but SR Tribe there

They have already said that the vote doesn't matter. It's in the settlement. The Tribal Council has to give a 30 year binding, legal, document giving their permission. A vote by SR members doesn't do that.

[82SiouxGuy]

True.

If the name is to stay, it would have to be through a lawsuit from a 3rd party, like the SL tribe has started with the NC$$. UND/SBOHE/North Dakota state government all have to stay out of it in order to protect UND's standing with the Big Sky and the NCAA. Seems simple enough, doesn't it?

I agree. But there seem to be a lot of people that don't understand any of that.

[82SiouxGuy]

They have already said that the vote doesn't matter. It's in the settlement. The Tribal Council has to give a 30 year binding, legal, document giving their permission. A vote by SR members doesn't do that.

The 30 year part wasn't in the settlement. The SBoHE said that they wanted at least a 30 year agreement because they didn't want to have to worry about the issue coming up every year or 2. But that number was never written in stone, they were willing to negotiate on the actual length.

[dmksioux]

The 30 year part wasn't in the settlement. The SBoHE said that they wanted at least a 30 year agreement because they didn't want to have to worry about the issue coming up every year or 2. But that number was never written in stone, they were willing to negotiate on the actual length.

You are correct. Sorry, I tend to get a bit worked up over all the fans who don't believe what the NCAA, Big Sky, and UND officials are trying to tell them. No matter how it is explained that just don't want to hear it or believe it. This is why the SBoHE needs to make a stand beginning on Monday.

[RD17]

If the SBOHE decides to challenge the constitutionality of the law, what sort of time frame would it take for the ND Supreme Court to make a decision?

[ScottM]

If the SBOHE decides to challenge the constitutionality of the law, what sort of time frame would it take for the ND Supreme Court to make a decision?

Courts have the authority to expedite proceedings, especially on more critical issues. I submit the constitutionality of a statute, and possibly another provision to the state constitution, would qualify for a "fast track". But it all depends on whether the Board summons the gravitas to pull the trigger.

[CAS4127]

Courts have the authority to expedite proceedings, especially on more critical issues. I submit the constitutionality of a statute, and possibly another provision to the state constitution, would qualify for a "fast track". But it all depends on whether the Board summons the gravitas to pull the trigger.

There are some wrenches to the equation tho, Scott. For example, and as it appears you may know, a decision on the constitutionality of the statute must first be made at the District Court level, and that decision could then be appealed to ND Supreme Court, provided it is a "final" decision and not interlocutory. At that point, yes, the matter could be expedited to the ND Supreme court, PROVIDED the loser at the district court wants to appeal. Say the District Court judge rules the law unconstitutional. The State doesn't have to appeal that decision. Also, and what really messes things up (or at least could) is that the ND Attorney General is required to defend the constitutionality of laws. Yes, I said that. Wayne S and his office have to defend the law if the SBoHE or someone else with standing challenges. Now, he/his office could just capitulate and agree it is unconsitutional, but, again, what an effing mess to even have to be involved in. Also, I am intrigued about the SBoHE discussing with Wayne/the AG's office the constitutionality of the law and or what it should do now that the petitions have been filed. He/his office actually have a conflict of interest-->see above on defending laws. See what numbnuts Carlson did here??!!!

[Fetch]

Legalize is not what matters to me - What is right is much more important - this has already been bungled by ND's top attorney

[Blackheart]

So what is the SBoHE meeting on Monday concerning? Not a lawyer and didn't stay at a Holiday inn Express recently...looks like part of the argument here is how much power the board has vs the legislature...this whole thing is a #%¥&@ mess.

[ScottM]

There are some wrenches to the equation tho, Scott. For example, and as it appears you may know, a decision on the constitutionality of the statute must first be made at the District Court level, and that decision could then be appealed to ND Supreme Court, provided it is a "final" decision and not interlocutory. At that point, yes, the matter could be expedited to the ND Supreme court, PROVIDED the loser at the district court wants to appeal. Say the District Court judge rules the law unconstitutional. The State doesn't have to appeal that decision. Also, and what really messes things up (or at least could) is that the ND Attorney General is required to defend the constitutionality of laws. Yes, I said that. Wayne S and his office have to defend the law if the SBoHE or someone else with standing challenges. Now, he/his office could just capitulate and agree it is unconsitutional, but, again, what an effing mess to even have to be involved in. Also, I am intrigued about the SBoHE discussing with Wayne/the AG's office the constitutionality of the law and or what it should do now that the petitions have been filed. He/his office actually have a conflict of interest-->see above on defending laws. See what numbnuts Carlson did here??!!!

Some states, and the federal government, allow their supreme court to directly take over a case that involves conflicts between state agencies, branches of government, etc. Not sure about North Dakota though.

However, Stenjhem must be wondering how he ended up in the middle of all this mess, when it probably seemed so clear in 2007 what his obligations were and he was just representing the Board and UND in the NC$$ litigation.

If North Dakota has a "private attorney general" statute, it may allow a third-party, like the alumni association, to sue on behalf of the school where the state would be the adverse party. The fact neither Carlson's Folly nor the proposed constitutional amendment have private rights of action may neuter the "save the name at any cost to UND" crowd down the road.

[82SiouxGuy]

So what is the SBoHE meeting on Monday concerning? Not a lawyer and didn't stay at a Holiday inn Express recently...looks like part of the argument here is how much power the board has vs the legislature...this whole thing is a #%¥&@ mess.

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.

[Blackheart]

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.

Thanks.

[Benny Baker]

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

[PCM]

[¶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?

[Benny Baker]

[¶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.

[82SiouxGuy]

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

Putting the name of the arena in state law may be a reach considering the state doesn't own it. The Engelstad trust owns the building and will for several years.

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.

[The Sicatoka]

Putting the name of the arena in state law may be a reach considering the state doesn't own it.

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 ...

[Benny Baker]

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.

[ScottM]

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.

Basically, the holding was that SL had no right to interfere with a contractual arrangement between the state and the NC$$, and it also took apart their attempts at establishing standing without explicitly telling SL "you don't have it". I'd wager the very same analysis will reappear in some respects in the federal litigation SL is waging against the NC$$.

I do find it interesting that Pat Morley's firm represented SL in the state action, is missing from the current federal action and represented REA against the petition crowd ...

[Benny Baker]

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.