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Lloyd Omdahl, Published March 11 2012

Omdahl: Higher ed’s fate in court

What started out as a quarrel over the Sioux logo has now become a major threat to the authority of the state Board of Higher Education. The Supreme Court decision, whatever it is, will have repercussions for years to come.

With the Legislative Council now hiring attorneys to challenge the authority of the board before the Supreme Court, the Legislature is declaring a full-scale attack on the constitutional jurisdiction of the board. The use of tax money to pay for attorneys when it is not a party in the case may constitute misappropriation of public funds.

The leadership of the House of Representatives is already scouting for new intrusions into the jurisdiction of the board, including threats to abolish the board. The attack has spread to other advocates of politicizing the board.

Some are operating from a seventh-grade understanding of government. The federal constitution may call for three branches of government, but state constitutions have the latitude to configure the functions of government any way the people choose.

In North Dakota, we have more than three branches of government. The Board of Higher Education has its own governing board and delegated powers that are above the authority of ordinary statutes passed by the Legislature. That makes it a fourth branch, regardless of what the national government looks like.

In Federalist Paper No. 48, James Madison made the astute observation that “the legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”

He continued with, “The danger from legislative usurpations which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.”

The board was created to resist usurpations by the political branches of government. In the struggle for control of government, these usurpations are as likely to happen today as they did in the 1930s, when the board was created to extricate higher education from politics.

The legislative record proves Madison’s point. Bills have been introduced in every session of the Legislature that attempted to encroach on the authority of the board. Some of these bills resulted from the failure of the board to deal with a problem but, in most cases, they reflected the desire of the Legislature to absorb the powers of the board into its “impetuous vortex.”

If the Supreme Court should uphold the authority of the Legislature in a case as clearly unconstitutional as the Sioux logo matter, then the board will have no authority beyond the reach of the legislative assembly. The constitutional language will be meaningless and the Legislature will have license to run the institutions of higher education as it chooses.

Admission standards, courses of study, athletics, academic freedom, out-of-state enrollments, degree programs and a host of other activities in higher education will be on the chopping block every session. The board staff will spend most of its time defending the integrity of higher education in North Dakota.

On the other hand, if the court upholds the board in the Sioux logo case, it will discourage future attempts by the Legislature to invade the legitimate authority of the board.

The Sioux logo fight has been a stream of endless mistakes. Just about everyone in government is entitled to a little blame. It is now up to the Supreme Court to put an end to this comedy of errors. North Dakota is already the laughing stock of the sports world.


Omdahl is a former North Dakota lieutenant governor and a retired University of North Dakota political science teacher. Email ndmatters@q.com