One Almost Gets The Feeling The Board Of Higher Ed Meant To Lose The Sioux Lawsuit


When the State Board of Higher Education sued to stop North Dakota voters from casting their ballots on the Fighting Sioux issue they assured us of the justness of their cause. In fact, they were so confident, that they and their supporters castigated the legislature for daring to hire their own lawyer to challenge the law.

But now that their case has imploded, suddenly the university system and their allies are telling a different tale. Through the egg on their face, of course.

Grant Shaft, president of the State Board of Higher Education, while disappointed the court didn’t declare the law unconstitutional, said the decision was “reasoned” and he accepts it.

So did Sen. Mac Schneider, D-Grand Forks, an attorney who had argued on the Senate floor last year that it was time to let the nickname go to protect UND athletes and athletic programs threatened by NCAA sanctions.

“I certainly respect the court’s decision,” he said Wednesday.

“The case deals with novel constitutional issues. By law, a constitutional decision requires four votes from the five justices. They had three, so their decision not to take it on was not surprising.”

“Not surprising.” That’s a good one, Senator Schneider. Read the rest of the article for more unintentional hilarity. There’s enough spin going on to power an entire city.

Keep in mind that these are the same learned legal experts who lecture the rest of us about the supreme, almighty power the Board of Higher Education has over the university system. The legislature can’t just pass laws and just expect them to follow. The university system is not subject to the whims of mere democracy.

They are the lords of their realm, and by all accounts if the voters approve the Fighting Sioux law (and I suspect they will because the university system has almost zero credibility with the public at this point), these same group of arrogant bureaucrats will sue again to block the law.

Claiming, again, that we’re all wrong and they’re right. I’m anxious to see how that works out for them.

Rob Port is the editor of 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.

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  • Kevin Flanagan

    It’s a case of the bourgeoisie vs. the proletariat. 

  • Bat One

    Those “lords of the realm” are in a whole lot weaker position in the public eye than they were 6 months or a year ago.  The extravagance of a taxpayer-funded airline of their own, the foreign student/phony degree scandals, the overall lack of any meaningful management oversight of the entire state higher education system, the lies and distortions offered the public and the legislature.  Kinda makes sense that they just might want to keep a low profile for a while.

  • stever22

    UND President Kelley refuses to put in written form that UND will be kicked out of the Big Sky.  He seems to leave that to others to put in print and place before the legislature.  Rather, Kelley hedges his bets, stating that the continued use of the Sioux nickname will cause harm to UND’s reputation, that the nickname will have economic consequences on Grand Forks, and that maybe, maybe, the Big Sky could pull the plug on UND’s membership, but only if the NCAA becomes much more strict with regards to the Indian nickname policy (in violation of the legal agreement) and nearly all the NCAA schools move to zero tolerance – except bowl games and NCAA games – regarding Indian nicknames (like Iowa, Minnesota, Wisconsin, and Dartmouth.)

    Kelley, writing in the latest UND Alumni Review 

    “Let me be clear: Two petition drives threaten the future of our athletic program in all sports. If either of these drives is successful, there will be severe consequences for UND athletics, for the reputation of the University, and for the economy of Grand Forks through the loss of our ability to host post-season games and the loss of competitive games that will draw crowds to the city and to our athletic venues. … The NCAA is encouraging its members not to schedule even regular games against teams on this sanctions list. This could mean loss of affiliation in the Big Sky Conference, which will likely compromise our overall standing in collegiate athletics. And this, in turn, will likely compromise UND in other ways, from enrollment to national reputation, which will make it difficult to recruit and retain the best faculty, staff and students. ”

    This was the first written statement ever by President Kelley against the nickname, and it was very tepid in comparison to O’Keefe’s and others.

    Spring Issue – Page 21 

    When Kelley had UND Alumni Association Director Tim O’Keefe write the death notice for the Sioux nickname in the Winter Issue of the Alumni Review (page 4), before the repeal the repeal gained enough signatures through the petition drive, the story was much different.  Kelley doesn’t seem to concern himself with others such as O Keefe – who has never been present at any Big Sky meeting – are distorting the true affiliation picture.   Kelley will not place himself in the position of perjury – whether before a legislative hearing or in the media – but pushes forth others who don’t have first hand knowledge to emphatically state that UND will not have conference membership.

    O’Keefe’s words:”The facts that surfaced this year made it clear that we could not gain entry to the Big Sky Conference, or for that matter any credible conference.” 

    It must be so embarassing for an esteemed President with a PhD from a PC school like Cal-Berkeley to be associated with such a diabolical nickname.  Now, it isn’t about that loss of athletic affiliation that Kelley is so sure of –  but about the horrible reproach and shame Kelley himself feels from the the pantheon of holiness: Cal and Stanford and the NCAA. 

    What is even more interesting is that Cal and Stanford themselves do not reject UND as fellow conference members. UND became a member of the Mountain Pacific Sports Federation for men’s swimming even while possessing the nickname.  The Mountain Pacific Sports Federation covers a number of minor sports, and includes schools like Cal, Stanford, Washington, and Oregon.  The Mountain Pacific Sports Federation had no issue with adding UND, which occurred prior to the legislature repealing the nickname bill.   Perhaps the Mountain Pacific Sports Federation doesn’t have a problem with the name because Kelley was not at its President’s meeting to cause a commotion.  The issues with the Big Sky only occurred after Kelley attended a Big Sky President’s meeting and got his old buddy from Portland State to back him up.

    So it is fine with USC, UCLA, Cal, Stanford, and Washington to be associated with UND as the Fighting Sioux, but these hallmarks of academic excellence: Weber State, Southern Utah, E Washington, and Portland State – who all have presidents that have personal relationships with Kelley – get all lathered up about the name.   Hmmm…..

  • stever22

    THE MOUNTAIN PACIFIC SPORTS FEDERATION2011-2012 Participating Members11 Sports • 41 Institutions • 98 Teams • 13 States
    View the PDF Version
    Air Force Academy Loyola Marymount Seattle Pacific
    Alaska Anchorage New Mexico Stanford
    Arizona North Dakota UC Davis
    Arizona State Northern Colorado UC Irvine
    Brigham Young Oklahoma UC San Diego
    California Oregon UC Santa Barbara
    Cal Poly Pacific UCLA
    Cal State Bakersfield Pepperdine UNLV
    Cal State Northridge Sacramento State USC
    Colorado Saint Mary’s Utah
    Denver San Diego Washington
    Fresno State San Diego State Washington State
    Hawai’i San Jose State Wyoming
    Long Beach State Seattle

  • Rick Olson

    Bear in mind that North Dakota Supreme Court justices are elected to the bench just like their District Court counterparts are. Therefore judges wouldn’t be human if they didn’t consider for even a moment that their decision on this case that seems to have no end could cost them their jobs come re-election time. Voters have long memories, after all.

    It seems to me that the justices deliberately did not address the constitutionality issue so they could leave this subject open ended for now, so the courts could revisit the subject again if need be. Had they voted to block the election, that would have set a very dangerous legal precedent pertaining to the people’s right to seek redress via the ballot measure processes of initiative, referendum and recall. Had the Supreme Court blocked the referral, that would have opened the doors to others potentially running to the nearest judge to block a ballot measure in the future from being voted upon, despite the fact that it had been certified to be on the ballot.

    This would have potentially rendered the direct citizen initiative, referendum and recall authority to be meaningless if all a judge has to do is issue an injunction before the vote is held. That would set a very dangerous precedent.

  • Tim Heise

    UND president yesterday sent out an email to all students stating among other things that the fighting sioux nickname is hurting the morale in the school.


  • stever22

    The very idea that a republican form of government (the right to vote) is repulsive to much of UND’s faculty, so it should not be surprising that the UND faculty has a major morale problem right now!!   The ND Supreme Court decision was absolutely devastating to Twamley Hall and to most of the faculty – who wanted to avoid a public vote at practically any cost. Hooray that Kelley and the moral bankrupt faculty did not succeed in preventing the people of ND from voting!!

    “UND president yesterday sent out an email to all students stating among other things that the fighting sioux nickname is hurting the morale in the school.”

  • stever22

    Interesting.  On June 15th, 2011, the Western Athletic Conference Presidents extended an invitation of UND women’s swimming to become an affiliate member of that conference.   How can UND get voted in by Presidents of the WAC and Mountain Pacific Sports, but Big Sky Commissioner Fullerton claims that the Fighting Sioux name jeopardizes UND’s participation in a much lower prestige league.  During that very month, Kelley was speaking to the press every day about how the Sioux nickname is endangering the future of athletics at UND and that it would be impossible to gain any affiliations.  Yet, the WAC offers UND with the Sioux nickname.

    One answer:   Doug Fullerton will be beholden to President Kelley for promotions and raises in the future (the Big Sky Presidents determine Fullerton’s salary.)   In the WAC and MPSF, Kelley doesn’t even have a vote.

  • stever22

    On July 8, 2011, the Mountain Pacific Sports Federation offered UND membership in its conference for men’s swimming.  UND accepted.  At the time, UND had the Fighting Sioux as it’s nickname and there was absolutely no assurance that the nickname law would be repealed.

    How is it possible that USC, UCLA, and Stanford can coexist in the same conference as UND, but Portland State and E Washingtion have “issues”? Actually, not a single Big Sky school has publicly objected – there have been zero press mentions anywhere about any Big Sky conference President objected.

    Four voices have been heard from the Big Sky: Doug Fullerton, Kelley, Faison, and Wanless

    Wanless strongly implied Faison was lieing. Faison retracted his statement after media reports circulated of what Wanless said .

  • stever22

    In the Summit League, only three voices were ever heard in the media:

    Commissioner Douple, Kelley, Faison

    Commissioner Douple later charged that Kelley asked him to lie.   Kelley strongly denied it.

    • Siouxper Fan

      And, please, let’s not allow anyone to forget Dr. Kelley’s pretentious lie about Commissioner Douple’s comments, either.   He intended to put words in Douple’s mouth and it was not the case at all.  

      Shame on Kelley…  What a bozo!