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.

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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  • Camsaure

    Keep the pressure on, it is high time the SBHE becomes accountable to the people. We need another petition drive to reconcile all this recent corruption.

    • The Fighting Czech

      Its been explained to me previously that previous attempts to change the Constitution in respect to trying to control the out of control SBHE.  have always failed,  maybe your thinking to big,  Perhaps, small ” with best of all intentions” steps is what is needed….  Stop thinking about slamming one over the wall.  several base hits will do the exact same thing. it works for the Democrats… in the mid eighties,  Minnesota forced the seat belt law down our throats,  the only way they could get it to pass with out getting thrown out of office, was to say there would be no fines,  no enforcement,  its just  to encourage seat belt use…. what is it today?  I think the fine is over $100.  and has gone from No enforcement, to Primary stopping infraction, which, by the way, was signed into law by a so called conservative governor… we have to start using the democrat playbook.   its a proven winner….

      • Camsaure

        You might be right on that

      • RCND

        People had a harder time fully seeing the real issues behind our higher ed system of governance… til now. If there is ever a time to make fundamental change to the system, this is it. The Fighting Sioux issue is a black and white case of right and wrong, and the DSU problem is crystal clear too. I am sure this is not the only campus this is happening at either. Add NDSU and MSU’s problems to the mix and a perfect storm is brewing for this necessary change to occur

        • Matthew

          What is black and white about the Fighting Sioux issue?

  • http://profiles.yahoo.com/u/NLDVHVBNBKSUODWOIAFHQBAHII Stan

     Not only would this case have ramifications in the state of North Dakota, it would have national implications.

    • http://sayanythingblog.com Rob

      How so?

  • Matthew

    The SBHE was created for the “control and administration” for state educational institutions in North Dakota.

    I don’t think the SBHE can ignore any law, though any law about the “control and administration” of a state university can be argued to be their sole purview. The type of logo of the school clearly fits the “control and administration.”  It may be the state legislature that is overstepping its bounds, not the SBHE.

    • headward

      Same could be said for transparency and smoking laws.  Everything can fall under “control and administration”.  The State Supreme Court would have to define something that hasn’t been defined.  So it would be an all or nothing bet.

      • Matthew

        I think you can make a strong argument that transparency or smoking laws are not related to the control or admnistration of the university. 

        But if you want to make the argument that all laws have to do with administration and control than you have ceded all power to the SBHE.  As long as you believe that the ND Constitution is superior to laws of the legislature than the SBHE has control.

        • http://sayanythingblog.com Rob

          It really is a problem. Open records laws are certainly pertinent to the control and administration of the university as they dictate certain criteria that every meeting they hold must follow.

          You can’t pick and choose which statutes apply and which don’t.

          • Matthew

            The ND constitution is clear.  The SBHE has authority over the control and administration of the state university system.

            I would argue that transparency laws are not about administration or control, but are about reporting. Smoking laws aren’t about administration and control, but are about public health.

            I would argue that the “control and administration” clause is mainly about the day to day management of a university.

            Part of the problem is that these terms are poorly defined.  The drafters of the ND Constitution sucked.  This probably isn’t the only poor drafting in your constitution.

            However, you want the Fighting Sioux name.  To do that you want to show that the state constitution’s declaration that the SBHE has authority over the administration and control of the universities is meaningless.

            I think you are fighting an uphill battle.  If the SBHE’s authority is meaningless, why was it put in the constitution?

            BTW, I don’t know how you can argue that the logo or mascot of UND is not part of the “control or administration” of UND.

          • http://sayanythingblog.com Rob

            I never argued that the nickname wasnt part of the administration. I’m just saying that the university system doesn’t exist outside the power of the legislature.

    • http://nofreelunch.areavoices.com/ Kevin Flanagan

      “The SBHE was created for the “control and administration” for state educational institutions in North Dakota.” The state education cabal has been out of control for many years now!

      • Matthew

        What’s your point?  It is in the ND Constitution.  Change the constitution.  You can';t just say , “We don’t like it so we are going to pass a law.”

  • RCND

    It is beyond tacky that the SBHE is continuing to scheme on how they can use the legal system to duck the will of the people of ND, when they have had real scandals on their campuses punctuated with the tragic death of a professor tied to those scandals. It is clear they are so drunk on their own power … and having that power threatened… that their judgement and clear thinking has been grossly affected.

  • Darlene

    You need a mental evaluation.

  • http://aimable.ghookermls.info/ Geoffrey Hooker

    I seem to recall that parking meters are illegal in North Dakota.  Yet there are several to be found on the Grand Forks campus of UND…….

    • RCND

      State law says that it is illegal for the state or any political subdivision to erect parking meters on streets and highways. Parking lots and loops are excepted

  • Truebeliever

    The best message can be sent by 18 year olds with the encouragement of their parents choosing to go to college somewhere else.

    • Matthew

      What message are you talking about?

  • Nomoremussolini

    A question I’ve always wanted to have answered is this:  At this point we have one group of Sioux – the Spirit Lake – who HAVE VOTED IN FAVOR OF THE NICKNAME.  We have one groujp, Standing Rock,  WHO ARE NOT BEING ALLOWED BY THEIR LEADERS TO VOTE.  So why does the NCAA persuade itself that the elite leadership of the Standing Rock Sioux are representative of the Sioux when they are the ones who do not dare hold an election?  Why doesn’t the NCAA accept the only Sioux VOTE on record and instead of presuming lack of support, acknowledge the positive evidence of support, which, so far, is all that really exists?  Then, perhaps, the Standing Rock people would be given a chance to vote.  This is like not holdiing an election in November and the NCAA deciding that what the people really want is four more years of Obama.  This is insanity.

    • two_amber_lamps

      The Spirit Lake Sioux decision on the matter doesn’t fit with the leftist NCAA agenda so of course they’d defer to a second opinion which is not forthcoming. 

      I’d call the Standing Rock Tribe’s indecision in the matter to be tacit approval/endorsement of the Spirit Lake Sioux’s decision.

    • Jeff

      The 2007 settlement between the NCAA and UND clearly states that approval from both tribes must be obtained before September, 2010. Could UND have gotten approval from Spirit Lake and say to the NCAA that they got approval from the closest tribe? The NCAA might have been ok with it. The only reason the settlement was even created was because UND was about to sue the NCAA. As much as it is hard to accept for a lot of nickname supporters, the tribal council’s decision to not support the nickname is that tribes voice being heard. Using your election comparison; Rick Berg votes on bills in Congress that you might not agree with. But he is the elected official to the US House and he therefore speaks for the people who elected him to his position. The people of Standing Rock voted for their tribal council and they have spoken for them. Even when a new tribal chairman replaced Ron His Horse Is Thundar, the council still held firm on their decision. 

  • Spice

    I was speaking to a couple of women about it and they said they just wanted it done and over with. I said that nearly 75% of the native americans want this logo. One said no, that’s not true, that’s not what the Herald said. I wanted to say, duh, you believe the Herald. I had to explain how the Standing Rock people did not get to vote on it and with this referendum, they will. They hadn’t known that before. Well, go Sioux. Don’t let the arogance of Grant Shaft deter you. Keep doing the right thing. God Bless!

  • bigdaddybernie

    The Dickinson MIDGETS was POLITICALLY  INCORRECT  once !

  • bigdaddybernie

    What is  ‘ THE NON-PARTISAN LEAGUE ‘  stand on this issue ?

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