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North Dakota

Constitutional Provisions

Blaine Amendment

“All colleges, universities, and other educational institutions, for the support of which lands have been granted to this state, or which are supported by a public tax, shall remain under the absolute and exclusive control of the state. No money raised for the support of the public schools of the state shall be appropriated to or used for the support of any sectarian school.” North Dakota Const. Art VIII, § 5.

Education Articles

“A high degree of intelligence, patriotism, integrity and morality on the part of every voter in a government by the people being necessary in order to insure the continuance of that government and the prosperity and happiness of the people, the legislative assembly shall make provision for the establishment and maintenance of a system of public schools which shall be open to all children of the state of North Dakota and free from sectarian control. This legislative requirement shall be irrevocable without the consent of the United States and the people of North Dakota.” North Dakota Const. Art VIII, § 1.

“The legislative assembly shall provide for a uniform system of free public schools throughout the state, beginning with the primary and extending through all grades up to and including schools of higher education, except that the legislative assembly may authorize tuition, fees and service charges to assist in the financing of public schools of higher education.” North Dakota Const. Art VIII, § 2.

Vouchers: Yes

Tax Credits: Yes


Existing Private School Choice Programs

None

Relevant Case Law

D’Errico v. Lesmeister, 570 F. Supp. 158, 162 (D.N.D. 1983)

A federal district court held that North Dakota’s higher education tuition assistance program violated the First Amendment’s Establishment Clause because “[t]he net effect is that students attending two sectarian religious schools in North Dakota operated for express religious purposes are receiving state financial assistance.”

Gerhardt v. Heid, 267 N.W. 127 (N.D. 1936)

The North Dakota Supreme Court held that wearing religious garb while teaching in a public school does not violate North Dakota’s Blaine Amendment because it merely identifies the religion of the teacher rather than attempting to convert the students.

Todd v. Board of Education, 209 N.W. 369, 371 (N.D. 1926)

The North Dakota Supreme Court held that the requirement of a “uniform system of free public schools” does not mean “that school facilities provided in any district by means of taxes imposed therein shall be available to pupils from other districts without charge.”

2003 N.D. Att’y Gen. Op. No. L-06

The school district may not distribute educational technology funds to private schools.

Analysis and Recommendations

Both tax credit and voucher programs are school choice options for North Dakota. Although its constitution contains a Blaine Amendment, a voucher program funded from sources other than the public school fund complies with its terms. It is unclear whether North Dakota adheres to federal precedent on Establishment Clause issues, and the Uniformity Clause within its education provisions has received very little judicial attention.

Model Legislation: Education Savings Account, Parental Choice Scholarship Program (Universal Eligibility), Parental Choice Scholarship Program (Means-Tested Eligibility), Special Needs Scholarship Program, Foster Child Scholarship Program, Autism Scholarship, Great Schools Tax Credit Program, Family Education Tax Credit Program

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