Higher ed board, Legislature disagree on lawsuit

BISMARCK — The state Board of Higher Education’s lawsuit over the Fighting Sioux nickname is intended to be limited to that issue and is not a challenge of the Legislature’s authority over other higher education issues, higher education officials said Friday.

The Legislature and the Board of Higher Education are at odds over a state law requiring the University of North Dakota to keep its Fighting Sioux nickname.

Attorney General Wayne Stenehjem has asked the state Supreme Court to declare the law unconstitutional on behalf of the Board of Higher Education. The lawsuit also seeks to prevent a statewide vote on the nickname.

The Legislature has hired an attorney to defend the law and believes the lawsuit challenges legislative authority and the Legislature’s role in addressing higher education issues.

On Friday, university officials described the narrow intent of the lawsuit during a meeting with legislators.

“The board is asking the Supreme Court to declare that (law) unconstitutional. Period. No more, no less,” said Pat Seaworth, general counsel for the board.

House Majority Leader Al Carlson of Fargo disagreed and said the case is “much more far reaching.”

“The brief isn’t just one page or one sentence that says the Fighting Sioux name is the only issue. You can’t convince me otherwise because I’ve read it,” he said.

The Board of Higher Education doesn’t have a problem with the Legislature getting involved with the lawsuit, President Grant Shaft said.

“All people who want to have a voice on the issue should have a voice at that time,” he said.

Seaworth told legislators the board filed the lawsuit as a last resort.

“That’s the only recourse left to the board to save UND athletic programs,” he said. “Without action by the board, UND athletic programs are going to suffer irreparable harm. In fact, they have already suffered harm. They have already been damaged significantly.”

Seaworth said he’s heard people blaming the NCAA, calling the organization a bully and saying North Dakota needs to resist the bully. But he said the NCAA is a private organization whose members need to follow the rules or go elsewhere.

Rep. RaeAnn Kelsch, R-Mandan, said the NCAA has become a fifth branch of government in North Dakota.

“That kind of bugs me a little bit that we have this private organization that has so much clout in the state of North Dakota that they can say it doesn’t matter what your citizens think,” she said.

Seaworth said people have lost sight of what’s important: the University of North Dakota and its athletic programs, student athletes and other students.

“When the football game is over, when the basketball game is over and those student athletes head to the shower, the uniforms with the Fighting Sioux logo and name on them are nothing more than a pile of dirty laundry,” he said.

Elevating a nickname and logo above the interests of the university and students “just doesn’t make sense,” he said.

The Sioux people were forgotten during the entire debate, said Sean Johnson, who is on the sponsoring committee to put the Fighting Sioux nickname to a statewide vote.

He challenged Seaworth to tell members of the Spirit Lake Nation that their name and likeness “is a pile of dirty laundry.”

“This issue of the name and the logo is far more than a name and mascot,” Johnson said. “It is representative of their culture, of their traditions, all of which they shared with the University of North Dakota.”

The state has an obligation to stand up for their rights even if there’s some pain in the interim, he said.

“In North Dakota, we have a tradition of doing the right thing even if it’s hard to do and that is what we need to do in this case,” Johnson said.

Carlson said they can argue the Fighting Sioux nickname all day and no one will win.

“This is about the breadth and depth of that brief and that lawsuit. That’s why we’re involved,” he said.

Legislative Council counsel John Bjornson said the lawsuit could play out a few ways. The Supreme Court may decide it doesn’t have jurisdiction over the case and may allow the statewide vote on the nickname to go forward, he said.

The court could look at the narrow issue of the Fighting Sioux nickname. It could also look at the broader issue of how far the authority of the legislative branch extends with respect to creating policy related to the Board of Higher Education, Bjornson said.

If the Fighting Sioux law is declared unconstitutional, the question remains what is constitutional and if the board can challenge any law approved by the Legislature, he said.

“There’s quite a bit at stake here for the legislative branch,” he said.

Teri Finneman is a

multimedia reporter for

Forum Communications Co.

Tags: higher education, news, courts, legislature