Passage of the legislation to require the University of North Dakota to keep the "Fighting Sioux" logo has put the Board of Higher Education in a historic quandary. It must now capitulate to the political branches of government, i.e. the legislative and executive, or fight for its constitutional role in state government.
Even though the debate in the Legislature wandered into the merits and demerits of the logo itself, the issue before the Legislature always has been clear and simple - unconstitutional invasion into the jurisdiction of the Board. Despite the hours of rhetoric, the logo matter is peripheral to this more fundamental issue.
Article VIII of the constitution is clear on the authority of the Board:
"The said state board of higher education shall have full authority over the institutions under its control....the state board shall have the power to delegate to its employees details of administration....the board shall have full authority to organize and reorganize the work of each institution....and do each and everything necessary and proper for the efficient and economic administration of said state educational institutions."
The language leaves little doubt that the "Fighting Sioux" bill is unconstitutional. Certainly members of the Legislature are sufficiently literate to read and understand these direct constitutional mandates. Even so, they proceeded to pass the bill and the governor made himself a party to the illegitimate process by signing it.
Passage of the logo bill has consequences that could extend far into the future. If the political branches can commandeer the board's power unchallenged on this issue, the board will be relegated to the role of an ordinary statutory board in future legislative sessions.
By acquiescing on the issue, the board will be establishing a precedent for future power grabs. In this session, the focus may have been on a logo, but in future sessions it will be the content of university courses, the staffing patterns, the degree programs, the duties prescribed for employees, and on and on. And we will be back to abuses that forced the separation of the board from the political branches in the first place.
Since the political branches have ridden roughshod over the board in HB 1263, then the board must respond with equal vigor. To protect its integrity, it must fight back and continue its transition to a new logo as though the logo bill never passed. If the Legislature and/or the governor want to press the issue, let them go to court and ask for a mandatory injunction against the board for refusing to comply with an unconstitutional law.
The administrators, supporters and friends of every institution of higher education ought to be concerned. Every session of the Legislature entertains a flurry of measures meddling in higher education. At least a dozen have appeared in this session alone. To curb such bills in future sessions, it is critical that the board's constitutional authority be confirmed.