Researchers at North Dakota State University were awarded a $1.2 million three-year competitive research grant from the U.S. Department of Health and Human Services Administration for Children and Families, with Planned Parenthood Minnesota, North Dakota, South Dakota as subcontracted partner.
Approximately two weeks ago, North Dakota legislators questioned whether the grant violated NDCC 15.1-21-24. Sen. Tim Flakoll, chair of the senate education committee, requested a review from an attorney at legislative council. It was determined that the grant was not in conflict with that statute.
On Jan. 9, Chancellor Hamid Shirvani was advised of this information. On Jan. 10, he requested a copy of the grant information be sent to the North Dakota University System’s general counsel, and wrote, “While we staunchly support the faculty's academic freedom to pursue their research agendas in the manner they choose, we also want to ensure they and the university are doing so in compliance with state laws.”
On Jan. 14, NDSU general counsel was advised by NDUS general counsel that there were additional statutes that may affect the grant, including 14-02.3-01(2) and 14-02.3-02. Both are criminal statutes and neither had been previously reviewed by legislative council. NDSU general counsel then advised Provost Bruce Rafert and Vice President for Research, Creative Activities and Technology Transfer Phil Boudjouk, who, as a temporary measure, placed a hold on the funds while the issues are researched.
Of the two statutes the second has raised more legal questions. The statute (14-2.3-02) reads:
“No funds of this state or any agency, county, municipality, or any other subdivision thereof and no federal funds passing through the state treasury or a state agency may be used as family planning funds by any person or public or private agency which performs, refers, or encourages abortion.”
In looking at the federal grant, federal funds will be passing through NDSU in order to pay for a subcontract with Planned Parenthood. These funds are to be used for Planned Parenthood with the aim of providing “comprehensive evidence-based teen pregnancy and sexually transmitted infections prevention programming . . .” Thus, the funds could be determined to be, in the language of the statute, “family planning funds.” Moreover, Planned Parenthood is a “private agency which performs, refers, or encourages abortion,” in the language of the statute.
A complicating factor is that federal courts have struck some or all of the statute, so the legal question is determining the applicability and continued viability of the statute.
NDSU President Dean Bresciani, in a statement on Jan. 17, commended the faculty for obtaining this competitive grant, but reiterated the importance of legal compliance. “As a practical matter, all grant awards from federal or state agencies come with a wide array of regulations, guidelines, restrictions, reporting obligations and performance expectations. As the grant recipient, NDSU has an absolute obligation to comply with those regulations, as well as any applicable laws or statutes,” he wrote. “The only responsible action is to freeze the funds while that question is resolved. That is the only decision that has been made at this point in time.”