Public funds, private fight

Private colleges are tugging at North Dakota's public purse strings, leaving some officials concerned about setting precedent and others wondering if the state's constitution is being skirted.

The constitution prohibits spending public dollars to support private colleges.

But giving tax-funded grants to students who attend private colleges is a different story - at least according to a legal interpretation that has never been challenged.

The issue of using tax dollars to support private education could come to a head Thursday when the state Board of Higher Education considers whether to allocate $150,000 to doctoral students at the University of Mary, a Roman Catholic university in Bismarck.

Board of Higher Education members and North Dakota University System officials are concerned that doing so could open the system to future requests from private and tribal colleges.

"Once you go down that road, where do you stop?" asked Pat Seaworth, general counsel for the university system.

North Dakota has provided need-based grants to undergraduates at the state's 11 public, private and tribal colleges since 1973 through the State Student Incentive Grant program.

The annual grant amount has been stuck at $600 for the past 15 years.

This fall, it will rise to $1,000 for private college students and stay at $600 for public college students, due to an additional $428,000 in state funding and a section in the higher education funding bill that designates 23.5 percent of the grant dollars for private college students.

Last week, Board of Higher Education member Bruce Christianson of Minot blasted the 23.5 percent mandate as unfair to public college students. Controversy over granting public dollars to private school students isn't unique to North Dakota.

The Florida Supreme Court heard arguments last week in a challenge to Gov. Jeb Bush's school voucher program, which provides tax-funded scholarships to students at private K-12 schools.

Florida's Constitution contains a clause similar to North Dakota's ban on funding private colleges.

Compare these sections:

- Florida: "No revenue of the state ... shall ever be taken from the public treasury directly or indirectly in aid of any church, sect or religious denomination or in aid of any sectarian institution."

- North Dakota: "No money raised for the support of the public schools of this state shall be appropriated to or used for the support of any sectarian school."

North Dakota lawmakers have found a way around that section in the past.

Dave Nething and Mike Unhjem, two Republican senators from Jamestown, sponsored a bill in 1979 creating a Tuition Assistance Grant program for students at Jamestown College, the University of Mary and Trinity Bible College in Ellendale.

Nething, now in his 39th year in the Legislature, said he and other lawmakers were well aware of the ban on funding private colleges.

"That's why it goes to the student instead of the school, because there isn't any way you can give money to the schools," said Nething, an alum of Jamestown College and the University of North Dakota School of Law.

"And the justification for it was we're interested in helping the students who need assistance," he added. "Whether they're going to public or private (colleges) isn't the question."

Private college students received more than $1.4 million in TAG grants from 1979 to 1987, with an average annual award of $445. Some of those students also received grants through the student incentive program.

When the 1987 Legislature merged the TAG program with the student incentive program, grants going to private college students dropped significantly. Their overall share of the dollars fell from more than 30 percent to 17.8 percent in 1988, according to university system figures.

The private student share hit a low of 11.6 percent during the 2000-01 school year. That spring, Rep. Bob Martinson, R-Bismarck, made sure they wouldn't lose any more.

Martinson, a University of Mary alum, put language in the 2001 higher education funding bill that guaranteed private college students would receive at least 20 percent of the grant funding. He did the same in 2003, securing a 22 percent share.

Martinson proposed a 25 percent share this year; a conference committee settled on 23.5 percent.

The university system last month projected that private college students will receive 25.9 percent of the grant money in 2005-06.

Students at the University of Mary will receive a total of $364,000 - nearly $80,000 more than students at UND, the largest of the state's 11 public institutions.

Martinson told The Forum last week that his intent was to restore some of the funding private students lost in the 1987 merger.

The 23.5 percent mandate - now written into the Century Code, North Dakota's collection of state laws - has rankled members of the Board of Higher Education.

Christianson said requiring the grant program to award 23.5 percent of its dollars to private college students when they comprise only 9 percent of the state's total college students seems "a little bit out of kilter."

Seaworth said that to his knowledge, no one has legally challenged the granting of public funds to private college students. In fact, most North Dakotans - even those in public higher education - support private college students participating in the grant program, he said. Such arrangements are common in many states, including Minnesota, he said.

The rationale is that without private colleges, the students would likely attend tax-funded public colleges, which would increase the burden on the state's tax base.

But there's a difference between awarding grants to undergraduates and doctoral students, Seaworth said.

The $150,000 earmark on Thursday's board agenda would go to students enrolled in the University of Mary's physical therapy doctoral program. That money is currently slated for doctoral students at UND and North Dakota State University.

Martinson originally amended the higher ed bill to say that the $150,000 "must be allocated to private baccalaureate degree-granting institutions offering doctorate programs for doctoral incentives."

That didn't sit well with some legislators, including Sen. Tim Flakoll, R-Fargo, who argued it violated the constitution.

The final bill language was changed to say the board "may allocate" up to $150,000 to the doctoral students.

University System Chancellor Robert Potts has recommended the board deny Mary's request, noting the 11 campus presidents voted unanimously against it.

Flakoll said he believes private college proponents are "trying to split hairs a little bit" in their interpretation of the constitution.

"It's the infamous slippery slope," Flakoll said. "I think until we do a better job of fully funding our own state institutions, we really need to focus on those folks."

Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528