Higher Ed Bureaucrats May Get More Than They Bargained For If They Challenge The Fighting Sioux Law

One outspoken critic of the fight to keep the Fighting Sioux nickname has been Grand Forks Herald publisher Mike Jacobs, who has all but called nickname supporters a bunch of uppity rubes who think they’re too good to follow the rules.

So it’s interesting to see Jacobs counseling the State Board of Higher Education to avoid a legal challenge to the Fighting Sioux law which was put back into effect when petitioners filed the requisite number of referendum signatures with the Secretary of State. “Let’s trust the people,” says Jacobs.

That’s quite the turn-about from his previous attitude, so what gives?

I think Jacobs is worried about issues larger than the nickname and logo.

The higher education bureaucracy in North Dakota has been taking it on the chin of late. From lavish overspending throughout the system to out-and-out corruption at Dickinson State University, the voters (and quite a few of the state’s elected officials too) have lost a lot of faith in the university system. The last thing the higher education bureaucrats need to do is make themselves even more unpopular by trying to undo, through judicial fiat, a referendum put on the ballot by nearly 17,000 voters.

The political optics of such a move are poor, and are likely to intensify critics and calls for reform to the system. Which is the last thing a committed apologist for higher education like Jacobs wants.

But this could be about more than good public relations. I’m no legal expert, but the independence of North Dakota’s higher education system from any sort of real oversight by elected leaders occupies a sort of uncanny valley in representative democracy. Most of us think of government working thusly: The legislature writes the laws, the executive approves the laws and the rest of the government follows the laws. Except, what the Board of Higher Education would argue in going to the state Supreme Court is that they don’t have to follow the laws the legislature (or in this case the people) passes because the state constitution gives them sole authority over the university system.

What if, instead of the Fighting Sioux law, the State Board of Higher Education was arguing that they didn’t have to follow the legislature’s laws regarding smoking on public property? What if the SBHE argued that they didn’t have to follow the transparency laws passed by the legislature?

Does our constitution really give the SBHE the authority to pick and choose which laws they’ll follow, and which they won’t?

That’s a serious legal question the state Supreme Court would have to answer, and if they ruled that the SBHE does not operate outside of the reach of the legislature, it would have far-reaching ramifications not just for the Sioux nickname issue but for how higher education in this state is governed.

Ramifications that champions of the higher education status quo won’t necessarily like.

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Rob Port is the editor of SayAnythingBlog.com. In 2011 he was a finalist for the Watch Dog of the Year from the Sam Adams Alliance and winner of the Americans For Prosperity Award for Online Excellence. In 2013 the Washington Post named SAB one of the nation's top state-based political blogs, and named Rob one of the state's best political reporters. He writes a weekly column for several North Dakota newspapers, and also serves as a policy fellow for the North Dakota Policy Council.

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