North Dakota

State constitutional guarantees regarding right to education

Right to Education

• The North Dakota Constitution (available at: Constitution | North Dakota Legislative Branch) guarantees a right to education. In relevant part:

  • The North Dakota Constitution imposes a mandate on the state legislature to “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,” N.D. Const. art. VIII, § 1, and “provide for a uniform system of free public schools throughout the state, beginning with the primary and extending through all grades.” N.D. Const. art. VIII, § 2.

  • Article VIII, Section 3 of the North Dakota Constitution provides that “instruction shall be given, as far as practicable, in those branches of knowledge that tend to impress upon the mind the vital importance of truthfulness, temperance, purity, public spirit and respect for honest labor of every kind” and Section 4 requires the legislature to “take such other steps as may be necessary to prevent illiteracy, secure a reasonable degree of uniformity in course of study, and to promote industrial, scientific, and agricultural improvements.”

Case law and legislative history defining and interpreting the right to education

•  All children in North Dakota have a constitutional right to a public school education. In Int. of G. H., 218 N.W.2d 441, 446 (N.D. 1974) (addressing education of individuals with disabilities).

Fundamental Right. The right to education is a fundamental right under the North Dakota Constitution.  Bismarck Pub. Sch. Dist. No. 1 v. State By & Through N. Dakota Legislative Assembly, 511 N.W.2d 247, 256 (N.D. 1994). The North Dakota Supreme Court has held that the North Dakota “constitutional provisions relating to education have at least equal standing with Article I, § 3 and § 4 of the North Dakota Constitution guaranteeing freedom of religion and freedom of speech and press.” State v. Rivinius, 328 N.W.2d 220, 228 (N.D. 1982).

Cases raising constitutional claims based on the right to education have essentially been limited to claims related to access to education for individuals with disabilities, funding, and the state’s compulsory attendance and school/teacher certification requirements.

• However, challenges to education funding receive rational basis or intermediate scrutiny if the challenged action “involves important substantive matters similar to those rights involved in cases in which [the court has] applied the intermediate level of scrutiny.” Bismarck Pub. Sch. Dist. No. 1 v. State By & Through N. Dakota Legislative Assembly, 511 N.W.2d 247, 259 (N.D. 1994) (applying intermediate scrutiny to a funding scheme that resulted in significant funding disparities from one district to another).

State constitutional protections regarding non-discrimination and equity

• Equal Protection & Due Process

• The following sections of the North Dakota Constitution guarantee due process:

  • “No person shall be twice put in jeopardy for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.” N.D. Const. art. I, § 12.

  • “All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed.” N.D. Const. art. I, § 1

  • Both sections should be understood together, because the due process clause protects and guarantees the enjoyment of the rights enumerated in Section 1. Thus, there cannot be a violation of Section 1 unless there is also a due process violation. State v. Cromwell, 72 N.D. 565, 573, 9 N.W.2d 914, 918 (1943) (occupational licensing case).

• Article I, Section 21 of the North Dakota Constitution guarantees equal protection: “No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens.” N.D. Const. art. I, § 21

• Children with disabilities are guaranteed equal educational opportunity under the equal protection and due process clauses of the North Dakota Constitution. In Int. of G. H., 218 N.W.2d 441, 447 (N.D. 1974).

• The North Dakota Supreme Court suggested in In the Interest of G.H. that severely handicapped people constitute a “suspect” class for equal protection purposes because they possess “the sort of immutable characteristic determined solely by the accident of birth to which the ‘inherently suspect’ classification would be applied.” 218 N.W.2d 441, 447 (N.D. 1974). However, the Court did identify the minor child’s disabilities and stated only that they were “severe physical handicaps.” Based on the Court’s emphasis of the severity and “immutable” characteristics of the minor child’s disabilities, it is unclear whether the Court would view individuals with less severe restrictions as being part of a suspect class.

Other relevant state constitutional civil rights protections

Religious Freedom

• Article I, Section 3 of the North Dakota Constitution guarantees freedom of religion: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference shall be forever guaranteed in this state, and no person shall be rendered incompetent to be a witness or juror on account of his opinion on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.” N.D. Const. art. I, § 3.

Challenges based on religious freedom have primarily been directed at state requirements for teacher or school certification. The North Dakota Supreme Court has adopted the least restrictive means test for analyzing legislation that imposes a substantial burden on religious freedom. State v. Rivinius, 328 N.W.2d 220, 227 (N.D. 1982). The Court has also said that “the interests of individuals regarding their religious beliefs or convictions must be harmonized and balanced with the interests of the state so as to preserve the separate interests as much as possible without infringing upon the respective rights more than is necessary.” Id.

State law equivalents to Title VI, Title IX, Section 504, and the Educational Opportunities Act (EEOA) 

• North Dakota statutory law provides that each public school must be free, open, and accessible at all times to any child (N.D.C.C. § 15.1-06-01). 

• While there are no state law equivalents to Title IX or the Educational Opportunities Act outside of the statute referenced above, North Dakota statutory law does provide specific protections and educational standards for students with disabilities (respecting Section 504 of the Rehabilitation Act of 1973). 

• School districts are required to create a team that includes educational professionals and parents (and may include medical professionals) with respect to a student with a suspected disability.  If the necessary, the team is to create an individualized education program or services plan and make recommendations for the student’s education (N.D.C.C. § 15.1-32-12).  The school district is responsible for all costs of the student’s education not covered by the family’s insurance (N.D.C.C. § 15.1-32-13).  This may include the cost of educating a student with disabilities at a different school district (N.D.C.C. § 15.1-32-14) or at a private institution or out-of-state public school (N.D.C.C. §15.1-32-15).

• N.D.C.C. § 15.1-32-22 provides that the court may award reasonable attorney’s fees to a prevailing parent of individual with disabilities in any judicial proceeding to enforce the rights of an individual with disabilities to receive educational services.

• North Dakota resources on civil rights in education: Civil Rights | North Dakota Department of Public Instruction

Additional state civil rights protections that go beyond federal requirements (e.g., protections for LGBTQ+ students, multilingual learners, undocumented students)

• Certain provisions include civil rights protections for students in specific educational contexts:

• Transgender Students: N.D.C.C. § 15.1-06-21 provides that a board of a school district, public school, or public school teacher may not adopt policies requiring or prohibiting an individual from using a student’s preferred pronoun.  This section also provides that school boards must establish a plan of separate bathroom accommodations for a transgender student.

• Homeless Children: N.D.C.C. § 15.1-19-08 provides that a homeless child is entitled to free public school education in the same manner as that provided to other public school students.  School districts are required to allow nonresident homeless children to attend school in that district.

• Student Journalists: N.D.C.C. § 15.1-19-25 expressly protects the free speech rights of student journalists who participate in school-sponsored media.

State law protections regarding color of law or pattern/practice liability for law enforcement in schools

• Under N.D.C.C. § 15.1-19-14, a school may create or designate a law enforcement unit as defined in the Family Educational Rights and Privacy Act. Under this section, records of a student with the law enforcement unit are confidential, but can be released to certain specified parties.

Anti-discrimination protections under state human rights statutes

• Protections from discriminatory practices, including in the public school setting, are located in Chapter 14-02.4 of the North Dakota Century Code.  N.D.C.C. § 14-02.4-01 prohibits “discrimination on the basis of race, color, religion, sex, national origin, age, the presence of any mental or physical disability, status with regard to marriage or public assistance” and it is the state’s policy to “prevent and eliminate discrimination in…public accommodations.” 

•  N.D.C.C. §§ 14-02.4-14 and 14-02.4-15 provide that it is a discriminatory practice for persons engaged in the provision of public services or accommodations to fail to provide access to or give adverse or unequal treatment respecting such accommodations or services because of a person’s “race, color, religion, sex, national origin, age, physical or mental disability, or status with respect to marriage or public assistance.”

Private right of action provisions under state civil rights and human rights statutes

• N.D.C.C. § 14-02.4-14 provides a private right of action for any person claiming to be aggrieved by a discriminatory practice with regard to public services or public accommodations.  Within 180 days of an alleged discriminatory act, a person may: (1) file a complaint of discriminatory practices with the division of human rights within the North Dakota Department of Labor and Human Rights or (2) bring an action in the district court in the judicial district in which the unlawful practice is alleged to have been committed or in the district in which the person would have obtained public accommodations or services were it not for the alleged discrimination.

• The process for bringing a complaint can be found here: Public Service | Department of Labor and Human Rights

• Pursuant to N.D.C.C. § 14-02.4-20, the department or the court may order temporary or permanent injunctions, but no compensatory or punitive damages are available under the chapter.

• N.D.C.C. § 15.1-07-01 provides that “each school district may … be sued” as a “body corporate.”  This section also provides that the board of education of the city of Fargo may be sued as body corporate. However, certain provisions of North Dakota statutory law provide immunity from liability to the superintendent of public instruction, school districts, schools, school boards and members, and certain school personnel for certain practices.  Immunities from liability include from: (i) damages resulting from a school’s decision to display the ten commandments or recite the pledge of allegiance (N.D.C.C. § 15.1-09-33.5); (ii) liability resulting from injury caused by a safety patrol member while on duty (N.D.C.C. § 15.1-19-12); and (iii) liability resulting from bullying of a student (if the school district implemented a bullying policy pursuant to N.D.C.C. § 15.1-19-18) (N.D.C.C. § 15.1-19-21).

Identify whether state anti-discrimination laws also prohibit discrimination caused by disparate impact. If yes, does the state law allow a private right of action for disparate impact claims? 

• The North Dakota anti-discrimination laws do not explicitly reference disparate impact.  In 1992, the North Dakota Supreme Court considered but rejected a claim of disparate impact in the context of employment discrimination because it was unsupported by sufficient evidence. (Kent v. Sawyer Public School Dist. 16, 484 N.W.2d 287, 290-291 (N.D. 1992) (Kent v. Sawyer Public School Dist. 16 :: 1992 :: North Dakota Supreme Court Decisions :: North Dakota Case Law :: North Dakota Law :: U.S. Law :: Justia).

Is the right provided by state law conferred on the student, parent/guardian, or both? In other words, who can bring a claim under this law? 

• The right of action under North Dakota’s anti-discrimination law is available to any person claiming to be aggrieved by a discriminatory practice with regard to public services or public accommodations (N.D.C.C. § 14-02.4-14). 

Does the specified law or policy provide protections against retaliation? What are the elements of a retaliation claim? Are protections against retaliation clearly spelled out in the law or policy?

• N.D.C.C. § 14-02.4-18 clearly prohibits retaliation, providing that “[i]t is a discriminatory practice … to engage in any form of threats, retaliation, or discrimination against a person who has opposed any unlawful discriminatory practice or who, in good faith, has filed a complaint, testified, assisted, or participated in an investigation, proceeding, hearing, or litigation under this chapter.”

Statute of limitations for filing education-related state civil rights complaints (or state civil rights complaints broadly) or state human rights complaints?

• N.D.C.C. § 14-02.4-19 provides that complaints of discriminatory practices regarding public services or public accommodations must be filed within 180 days of the alleged act of wrongdoing.  Further, this section provides that if a complaint of a discriminatory practice is first filed with the North Dakota Department of Labor and Human Rights, an action in the district court must be brought within 90 days after the department dismisses the complaint or issues a written probable cause determination.

Are there areas where the state laws provide more protections than federal law? What are those areas? 

• North Dakota statutory provisions for human rights of Chapter 14-02.5 of the North Dakota Century Code largely track the language of federal statutes, and do not extend beyond federal protections.  

• Chapter 15.1-32 of the North Dakota Century code contains extensive requirements and guidelines for the special education of students with disabilities,a s described above.  Beyond these requirements, civil rights protections for students in North Dakota statutory provisions either mirror federal protections or are not specifically addressed in state statutes.