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ND AG to weigh in on sex ed grant legal issue

A march organized by North Dakota State University faculty gathers on the steps of Old Main on Tuesday on campus in Fargo to protest the decision to freeze federal funds for a sex education program.

BISMARCK -- North Dakota Attorney General Wayne Stenehjem will weigh in on the legal question said to be at the heart of North Dakota State University administrators' Jan. 14 decision to freeze a $1.2 million federal grant to create a new comprehensive sex education program.

Chancellor Hamid Shirvani told The Forum that he and North Dakota University System General Counsel Claire Holloway talked with Stenehjem and Chief Deputy Attorney General Tom Trenbeath late last week to request an informal opinion on a 1979 state law that university officials said may forbid the program from moving forward because of its plan to team up with Planned Parenthood.

But Stenehjem didn't want to issue an informal opinion, Shirvani said, so Holloway submitted a request Wednesday calling for a formal opinion on the matter. He said Stenehjem has agreed to expedite the request; there's no firm timeline yet on when he will issue an opinion.

North Dakota Century Code statute 14-02.3-02 forbids using government funding "as family planning funds by any person, public or private agency which performs, refers, or encourages abortion."

The law was tested in the courts in 1980, with a federal district court striking down parts of the law and ruling the statute's bans on providing funding to organizations that refer or encourage abortions were unconstitutional. But the court couldn't rule on the law's third category, performing abortions, because the plaintiff in the case didn't perform the procedure.

The decision was appealed, and in 1981, the 8th Circuit Court of Appeals ruled the statute was invalid under the Supremacy Clause and affirmed the 1980 district court judgment.

NDSU General Counsel Chris Wilson and other university officials have said it's unclear how to interpret those two court decisions, especially if the rulings struck down the entire statute or if part of it remains.

If so, they've said, it could forbid the voluntary sex education program that was to be offered to Fargo-area teens ages 15 to 19 with parental consent because of a subcontract with Planned Parenthood to deliver the education. Planned Parenthood doesn't provide abortions in North Dakota, but the national organization does offer the procedure in other states.

Shirvani said Stenehjem's opinion could have wide-ranging implications for the University System beyond the grant that prompted the legal analysis.

"If the attorney general were to determine that the statute survives in part, we will need to change our grant review process and may be unable to continue different types of research and practices that have nothing to do with abortions," he said. "One the other hand, a determination that the statute was struck down entirely will allow the current grant to proceed."