North Dakota’s attorney general has declared unconstitutional a legislative provision that requires the state to award a disproportionate share of its need-based financial aid to students at private colleges.

Students at the four private colleges in the state, three of which are religiously affiliated, have long been eligible for its financial assistance program, which provides aid to students deemed to have the most unmet need based on a calculation that includes the cost of tuition they pay. 

But in the flurry of the final weeks of its biennial session last spring, North Dakota’s Legislature tacked on a provision to its higher education appropriations bill that dictated that 23.5 percent of all aid awarded through the program go to students from private institutions – even though they make up about 9 percent of all students at colleges in the state. (The Legislature also approved $150,000 in grants for doctoral candidates at private institutions in the state, but the State Board of Higher Education rejected that allocation.)

To fulfill that requirement this fall, the North Dakota University System, which administers the grant program, wound up having to give significantly bigger grants to hundreds of private college students ($1,000) than to their peers at public colleges ($600). 

Because there are so many more students at public than private colleges, said Pat Seaworth, a lawyer for the state university system, “there was no way we could meet that 23.5 requirement” without increasing the size of grants to private college students. 

State Sen. Tim Flakoll, a Republican who opposed the initial legislative mandate, asked Attorney General Wayne Stenehjem to assess the constitutionality of the provision. In his written opinion last week, Stenehjem said that state aid to private institutions, including religiously affiliated ones, is constitutional as long as it is awarded fairly and proportionally.

"To the extent those programs evenhandedly provide moneys to students at all institutions of higher learning within the state based on need, and without specific regard to whether the student is attending a private institution, the programs are permissible,” Stenehjem wrote.

Giving individual students at private colleges significantly more than their peers at public institutions over and above their financial need, is not evenhanded, Stenehjem concluded. “The Legislature has in effect done what amounts to a back door attempt to support those private institutions,” said Seaworth of the state university system.

Seaworth said it was not yet clear whether or how the system office might deal with the financial aid awarded disproportionately this fall, but looking forward to the spring, he said, the system would “need to recalculate these awards and make sure they're awarded in an evenhanded manner based on need.”

Sister Thomas Welder, president of the University of Mary, said in an e-mail message that the institution was analyzing the attorney general’s opinion to gauge its impact on the Roman Catholic college and its students. “The staff will undoubtedly be sensitive to the attorney general's opinion,” she said. The other private institutions are Jamestown College, Trinity Bible College and MedCenter One College of Nursing.