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Ryan Johnson, Published February 14 2013

NDSU to move forward with sex education program after AG opinion

FARGO – After a monthlong hold, a new sex education program established by two North Dakota State University faculty members will “go forward immediately,” university officials said Thursday.

The announcement followed a formal legal opinion issued by Attorney General Wayne Stenehjem that the state law behind NDSU administrators’ decision to freeze a $1.2 million federal grant for the program was “completely invalidated” more than 30 years ago and wouldn’t prohibit the program’s partnership with Planned Parenthood.

“We’re just really pleased about the victory that this is for adolescents in the state of North Dakota,” said Molly Secor-Turner, one of the grant recipients.

In a written statement, NDSU President Dean Bresciani commended the faculty members who earned the federal funding made available through the Department of Health and Human Services after state officials turned down the money.

“A competitive federal grant of more than $1 million in their field is not typical and suggests a rather compelling and impressive proposal,” he said in a statement. “Along with the provost and their deans, I add my voice in respect for the principal investigators who successfully secured the involved federal grant.”

Faculty senate President Tom Stone Carlson said he was excited for the grant recipients, Brandy Randall and Secor-Turner, as well as for the youths who will benefit from their work. He said he appreciated the “outpouring of support” for the researchers and their project that came from across the campus, state and around the country.

Carlson said it’s important for NDSU to learn from this process and work together to develop new procedures that can deal with similar situations in the future. He said there were other ways to handle this legal question, including moving forward with the program while looking for the answer.

“Even though there’s excitement about this, about them being able to move forward, there’s still some concerns about the process by which the decision was made to freeze the funds,” Carlson said. “I think it led to some unnecessary distress for the campus community.”

Stenehjem was asked Jan. 31 to offer a formal opinion settling the issue following legal uncertainty and questions of academic freedom over the decision to freeze the three-year grant to create a voluntary sex education program for Fargo-area teens in collaboration with Planned Parenthood.

Chancellor Hamid Shirvani said the legal opinion allows the professors to move forward.

“We are pleased the attorney general has provided his guidance on this matter in such a timely manner,” he said in a statement. “It is good news that our concern about our faculty being in violation of the law has been removed, and they will be able to accept this generous grant and begin the work intended for these funds.”

The program was set to begin in late January, with participants ages 15 to 19 receiving comprehensive sex education as well as life skills training in the voluntary program open to teens with parental consent. The plan was put on hold Jan. 14 after NDSU and North Dakota University System attorneys found a 1979 state law that could prohibit the partnership with Planned Parenthood.

North Dakota Century Code Statute 14-02.3-02 forbids using any government funding “as family planning funds by any person, public or private agency which performs, refers, or encourages abortion.”

A federal district court struck down parts of the law in 1980 and ruled the statute’s bans on providing funding to organizations that refer or encourage abortions were unconstitutional. But the court didn’t rule on the law’s third category, performing abortions, because the plaintiff in this case didn’t perform the procedure.

The 8th Circuit Court of Appeals ruled in 1981 that the statute was invalid and affirmed the 1980 court judgment. But NDSU General Counsel Chris Wilson said it was unclear how to interpret those court decisions, especially if the rulings struck down the entire statute or left part of it on the books.

In his opinion, Stenehjem said the statute was challenged in court on the grounds it clashed with federal laws, including Title X of the Public Health Service Act, which authorizes grants to establish and operate voluntary family planning services. The appellate court ruled that North Dakota’s law conflicted with Title X, including a requirement that the funds can be used to perform abortions under certain circumstances such as when the life of the mother is at stake.

Stenehjem cited the 1981 court opinion that said there was a “clear” conflict between the state law and federal requirements because it would restrict grantees from making an abortion referral. The court ruled the statute was invalid under the Supremacy Clause, which says state law can’t trump federal law.

“The court did not qualify or restrict its finding,” Stenehjem wrote. “It purposefully declined to rewrite the statute ‘to cure the invalidity,’ because to do so would be ‘legislative enactment clearly beyond its judicial role’ and that the legislative history and intent would not support the court amending the statute.”

Because of that, he wrote, his opinion is the law was “invalidated” in its entirety with the 1981 court decision.

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