February 20, 2013 — A sex education program developed by two North Dakota State University professors will "go forward immediately," after state Attorney General Wayne Stenehjem (R) issued a legal opinion resolving a month-long freeze on the program's federal funding, the Forum of Fargo-Moorhead reports.
NDSU professors Brandy Randall and Molly Secor-Turner received a three-year, $1.2 million grant to launch research on a comprehensive sex education and life skills program for adolescents. The program was set to begin last month.
However, the funding was put on hold after NDSU and its attorneys raised questions about whether a 1979 state law could prohibit use of the funding because the program would be run through Planned Parenthood. The statute forbids the use of any government funding "as family planning funds by any person, public or private agency which performs, refers, or encourages abortion."
In 1980, a federal district court struck down the law's ban on providing funding to organizations that refer for or encourage abortion, but it did not address the issue of performing the procedure. In 1981, the 8th U.S. Circuit Court of Appeals affirmed the ruling. NDSU attorneys said the two rulings did not clearly indicate whether the law was partially or completely invalid.
In his opinion, Stenehjem said the 1981 appeals court opinion completely "invalidated" the law. He noted that the appeals court found there was a "clear" conflict between the state law and federal law because it would restrict grantees from making abortion referrals. The court struck down the law under the Supremacy Clause of the U.S. Constitution, which dictates that state law cannot trump federal law, he added.
"The court did not qualify or restrict its finding" or rewrite the statute because it did not have the authority to alter the law itself, Stenehjem wrote.
In a statement, NDSU Faculty Senate President Tom Stone Carlson called on the university to develop procedures to handle similar situations in the future without withholding funds. "I think it led to some unnecessary distress for the campus community," he said (Johnson, Forum of Fargo-Moorhead, 2/14).