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Ryan Johnson, Published January 22 2013

NDSU president tells why he froze sex education funds

FARGO - An “obscure” legal battle dating back more than 30 years is to blame for North Dakota State University officials’ recent decision to freeze a $1.2 million federal grant for a new sex education program, President Dean Bresciani said this week.

Bresciani was accused of “bowing to political pressure” by the president of the NDSU Faculty Senate last week for freezing the controversial grant, which would have helped launch this month a sex-ed program involving Planned Parenthood.

Chancellor Hamid Shirvani said the decision was not a reaction to legislative pressure or the controversy that arose after a Jan. 2 Forum article outlined the voluntary sex-ed and life skills courses for Fargo-area teens being planned by two NDSU assistant professors.

“I want to make it clear there is no political pull or push here,” Shirvani said.

Professors Brandy Randall and Molly Secor-Turner were notified in September they had won the competitive grant after North Dakota officials turned down the funding in the Affordable Care Act.

Bresciani said in an interview with The Forum that the plan was vetted and approved through the university’s usual legal compliance check for grant proposals.

But media attention to the program earlier this month prompted further legal analysis, he said, and a “very confusing” but potentially serious “question of law” forced the plan to be put on hold.

“This is simply a compliance issue that’s kind of out of sequence,” Bresciani said. “In a perfect world, we would have caught this before NDSU ever notified the principal investigators that the grant had been awarded. We have a whole process for this. But because the question of law is so obscure, it would have been hard for somebody to catch it; well, virtually impossible for somebody to catch it.”

Initial legal question

Emails provided by NDSU in response to an open records request show the issue first came up Jan. 4, when Sen. Tim Flakoll, R-Fargo, contacted lawyers with the Legislative Council to see if it would violate a law on the books since July 2012.

Section 15.1-21-24 of the Century Code requires the state’s K-12 schools to ensure any sexual health curriculum “includes instruction pertaining to the risks associated with adolescent sexual activity and the social, psychological, and physical health gains to be realized by abstaining from sexual activity before and outside marriage.”

Attorney Anita Thomas wrote to Flakoll that the program wasn’t planned to be in the schools, and instead would only be offered to teens ages 15 to 19 who voluntarily agreed to participate and had parental consent. She said the plans also didn’t conflict with law because this section only requires the “inclusion” of the listed topics and doesn’t limit a curriculum to only those topics.

NDSU General Counsel Chris Wilson said that information was forwarded by Flakoll to Bresciani, who then sent the opinion to Shirvani on Jan. 9. Shirvani responded the next day, telling Bresciani that there were “additional issues” of legality that needed to be researched.

“While we staunchly support the faculty’s academic freedom to pursue their research agendas in the manner they choose, we also want to ensure they and the university are doing so in compliance with state laws,” Shirvani wrote.

Claire Holloway, university attorney for the North Dakota University System, looked into the matter further and found another potential legal hurdle that could put the NDSU researchers at risk of a Class B misdemeanor depending on how the law in question was interpreted.

NDSU officials were made aware of this other possible conflict Jan. 14, and by that evening, Provost Bruce Rafert wrote that the university had frozen the grant funds “until we can unravel the issues.”

Wilson said he and Holloway have continued looking into it since the question was raised.

New legal question

The latest law in question is Century Code section 14-02.3-02, which forbids any state or local funding, as well as any federal funding passing through the state treasury or a state agency, from being used “as family planning funds by any person or public or private agency which performs, refers, or encourages abortion.” The law was passed in 1979.

In a Jan. 17 open letter lashing out at Bresciani for freezing the grant, the NDSU Faculty Senate Executive Committee said the program as outlined in the grant wouldn’t violate this law. Its president, Thomas Stone Carlson, wrote that the grant “is in no way associated with family planning” and wouldn’t allow spending the funding for family planning, including abortion.

Carlson said another factor is that the funding would be distributed under the guidelines for Title V, a federal program giving states block grants for the health of children and mothers. He said a 1980 legal case in North Dakota “clearly decided” this law doesn’t apply to Title 5 funds.

Carlson declined a request for additional comment, as did the professors awarded the grant.

But Wilson said the legal issue from this law is complicated because of an unanswered legal question – how to interpret two court decisions – and the stakes are high if he gives NDSU an incorrect interpretation that could be challenged later in court.

Under the program detailed in the professors’ grant proposal, the $1.2 million, three-year grant would go through NDSU to pay for a subcontract with Planned Parenthood to help deliver the education.

Wilson said a 1980 district court decision struck down parts of the law, ruling the statute’s bans on providing funding to organizations that refer or encourage abortions were unconstitutional. But the ruling stopped short of the law’s third category, performing abortions, because the plaintiff in the case didn’t perform the procedure.

The decision was appealed, rising to the 8th District Court of Appeals – one step below the U.S. Supreme Court – in 1981. Circuit judges ruled the statute was invalid under the Supremacy Clause because it was in conflict with federal Title X requirements that grantees provide comprehensive health care, including referrals to other services when medically indicated. Judges also affirmed the judgment of the district court that previously looked at the law.

But Wilson said it isn’t clear if that appellate decision means the law’s ban on providing funding to agencies that perform abortions still applies.

If so, the plan to team up with Planned Parenthood could violate this law, which hasn’t come under consideration in the courts in decades.

“So, that’s the legal issue we’ve got right now,” he said. “A lot of times people think with a legal answer, you open the book to Page 12, you look at the words and it tells you what the answer is. Sometimes it is that simple, like it was with that other statute. Other times, it’s really complicated.”

‘Doing our diligence’

Shirvani said it’s a complex issue, but he said Bresciani deserves credit for his decision to freeze the grant funding when these questions arose.

“He’s acting the way he should act, because we have an obligation to protect our faculty from criminal charges from breaking a state law,” he said.

Holloway said she and Wilson will continue to look into the law in question and try to reach a definitive interpretation. But there’s no firm timeline on when that work might be done, she said, and the issue could go to a third party for further analysis.

“We had people discuss different interpretations of that appellate case, so we’re just doing our diligence and looking into that further to make sure that we’re coming up with the right answer legally,” she said.

Bresciani said the grant will remain on hold until a final decision is reached.

“There’s no one to be faulted, but there is a question of law, and we have a responsibility to make sure that we either accept or deny the grant based on what North Dakota law is,” he said.

Rep. Kathy Hawken, R-Fargo, said it’s important to find a way forward for the program, which would also provide the teens who agree to participate with information on making healthy decisions, setting goals and other adult skills.

She said the program’s ties to Planned Parenthood earned it undue criticism in the state, despite the fact that the vast majority of the organization’s efforts deal with women’s health availability and education – not just providing abortions.

Still, Hawken said something needs to be done to educate teens here because North Dakota is one of just three states with an increased rate of teen pregnancy.

“I still think that this is a good program, and I am very hopeful that cooler heads will prevail and that Molly and Brandy can continue with their program,” she said. “It’d be a real loss to the community if we can’t – not the dollars, the information. Now, dollars are nice. But if they help one of those kids, that’s a life. There’s no price tag for that.”

Readers can reach Forum reporter Ryan Johnson at (701) 241-5587