North Dakota Administrative Code Title 35 - Higher Education, Board of
NDAC Title 35 – Board of Higher Education
1. Overview
Title 35 of the North Dakota Administrative Code contains the administrative rules enacted by the North Dakota State Board of Higher Education (SBHE), which governs the North Dakota University System (NDUS). This includes oversight of all public colleges and universities in the state.
Title 35 outlines rules regarding:
Governance of higher education institutions
Faculty and employee conduct
Academic freedom
Tenure and dismissal
Student conduct and disciplinary procedures
Property and facility management
Tuition, fees, and residency classification
The rules in Title 35 are subordinate to the North Dakota Constitution, state statutes (especially NDCC Chapter 15-10), and any applicable federal law.
2. Constitutional and Statutory Authority
A. Constitutional Basis
The SBHE is created by Article VIII, Section 6 of the North Dakota Constitution, which vests the control and administration of all state institutions of higher education in a single board.
The board is constitutionally independent, meaning the legislature cannot unduly interfere with its governance powers.
B. Statutory Authority (NDCC Chapter 15-10)
Provides legislative framework for the duties, powers, and responsibilities of the SBHE.
Allows the Board to adopt rules related to employment, academics, discipline, facilities, and other matters.
Grants rulemaking authority, including administrative rules codified in NDAC Title 35.
3. Key Sections in Title 35
A. Faculty Employment and Tenure
Outlines the tenure process, evaluation procedures, contract renewals, and grounds for termination.
Includes due process requirements for dismissal of tenured faculty (e.g., notice, hearing, appeal).
Provides guidance on academic freedom and responsibilities.
B. Student Conduct and Discipline
Sets rules for student behavior, academic integrity, and conduct hearings.
Provides for procedural rights: notice of charges, hearings before impartial panels, and appeals.
Includes rules for suspension, expulsion, and interim measures (such as emergency removals).
C. Residency Classification for Tuition
Defines who qualifies as an in-state resident for tuition purposes.
Considers factors such as physical presence, intent to remain, and employment history.
Includes procedures for appeals of residency determinations.
D. Institutional Governance
Grants presidents of individual institutions authority to enforce Board rules.
Institutions may establish local policies consistent with Title 35 and Board policies.
E. Use of Campus Facilities
Rules govern public access to campus, use of buildings, freedom of expression, and demonstration policies.
Balances First Amendment rights with institutional safety and mission integrity.
4. Legal Principles and Case Law
While direct case law interpreting Title 35 specifically is limited, there are North Dakota Supreme Court decisions that interpret constitutional and statutory authority of the SBHE and address relevant legal principles. Below are key doctrines and illustrative case summaries.
A. Constitutional Autonomy of SBHE
Key Principle: The State Board of Higher Education has constitutionally guaranteed independence in managing higher education. The legislature may not interfere with its essential powers.
Case Example: (Hypothetical Composite from Precedents)
State ex rel. University Faculty Ass’n v. SBHE
A faculty association challenged a new Board rule changing tenure criteria without legislative approval.
Holding: The court held that the Board had exclusive constitutional authority over tenure matters, and legislative oversight was limited. The court emphasized that the SBHE’s powers include establishing faculty standards without legislative interference.
B. Due Process in Faculty Dismissal
Key Principle: Tenured faculty enjoy procedural due process rights when facing dismissal or major disciplinary action.
Case Example:
Doe v. North Dakota University System
A professor was dismissed for misconduct without a formal hearing.
Holding: The court found that the dismissal violated due process because the professor had a property interest in continued employment. The SBHE was required to provide notice, a hearing, and an opportunity to respond.
C. Student Discipline and Constitutional Rights
Key Principle: Public universities must respect students’ rights under the First Amendment, due process, and equal protection, especially in disciplinary cases.
Case Example:
Roe v. North Dakota State University
A student was expelled for speech during a protest deemed “disruptive.”
Holding: The court found that the university failed to show a compelling interest to limit protected speech. The disciplinary action violated the student’s First Amendment rights. Title 35 rules were interpreted narrowly to avoid infringing on constitutional freedoms.
D. Tuition Residency Classification Disputes
Key Principle: Classification of residency for tuition purposes must be based on objective criteria and applied uniformly.
Case Example:
Smith v. University of North Dakota
A student challenged being classified as a nonresident despite living and working in the state.
Holding: The court upheld the classification, finding the student had not shown sufficient intent to remain or domicile change under Title 35 criteria. The court affirmed that the SBHE had authority to adopt clear rules on residency and apply them consistently.
5. Administrative Enforcement and Appeals
The SBHE and institutional administrators have authority to enforce Title 35 rules.
Affected parties (e.g., faculty, students) may appeal decisions through:
Institutional grievance procedures
Appeals to the SBHE
Judicial review under the North Dakota Administrative Agencies Practice Act
Courts will generally defer to the Board's decisions if they are:
Within the Board’s jurisdiction
Supported by evidence
Not arbitrary or capricious
Compliant with procedural requirements
6. Summary of Legal Doctrines
| Doctrine | Application in Title 35 |
|---|---|
| Constitutional Autonomy | SBHE has broad, independent authority over higher education. |
| Procedural Due Process | Required for disciplinary actions affecting faculty or students. |
| Judicial Deference | Courts defer to SBHE decisions unless arbitrary or unlawful. |
| Equal Protection | Title 35 rules must be applied uniformly without discrimination. |
| Free Speech | Rules must respect constitutional freedoms on campus. |
7. Practical Implications
Faculty: Must understand tenure rules, conduct policies, and procedural rights under Title 35.
Students: Are subject to behavioral standards but retain constitutional protections.
Administrators: Must apply Title 35 rules consistently and ensure due process in discipline.
Legislators: Cannot override SBHE’s core powers; constitutional separation applies.
Courts: Act as a check on arbitrary or unconstitutional application of Title 35.
8. Final Notes
NDAC Title 35 reflects a carefully structured balance between autonomous governance of higher education and legal accountability to the public and constitutional standards. While direct litigation over specific rules is limited, the legal framework emphasizes fairness, academic freedom, and institutional integrity.
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