Reserving state financial aid for students in North Dakota's private colleges is probably unconstitutional, because it supports religious schools and shortchanges public college students, Attorney General Wayne Stenehjem said.

The attorney general's opinion, issued Wednesday, is likely to shrink state grants this spring for more than 500 students at Jamestown College, the University of Mary in Bismarck and Ellendale's Trinity Bible College.

The Legislature, in drafting the two-year spending bill for North Dakota's 11 public colleges last spring, ordered that students at Jamestown, Trinity and Mary get 23.5 percent of the money set aside for financial aid grants.

Those colleges, and a nursing school at Medcenter One in Bismarck, are the only private schools in North Dakota that offer four-year degrees, Stenehjem's opinion says. The University of Mary is a Roman Catholic school, while Jamestown is Presbyterian and Trinity is affiliated with the Assemblies of God.

Previously, aid grants for both public and private college students were pegged at $600 annually, and distributed in $300 chunks in the fall and spring semesters. Students were ranked by financial need, and grants parceled out until the money set aside for them was exhausted.

However, the specified allocation for private-college students made more money available for each one who qualified, said Pat Seaworth, who is general counsel for North Dakota's university system.

The Board of Higher Education subsequently approved $1,000 annual grants to qualifying private-college students, while keeping the $600 maximum for students in North Dakota's public and American Indian tribal colleges.

Stenehjem's opinion says giving larger grants to private colleges probably violates a provision in the North Dakota Constitution, which reads: "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."

"They're not on the same footing. That is where it becomes a constitutional problem, because you're treating the private colleges better, and giving them an advantage than anybody else is entitled to," Stenehjem said in an interview.

A separate budget earmark, which reserved $150,000 to support doctoral programs at the University of Mary, is also probably illegal, Stenehjem said. However, the provision gave the Board of Higher Education final say on whether to award the money, and board members have already declined to do so.

"I conclude a court presented with this issue would likely find that those provisions are unconstitutional," Stenehjem wrote in his eight-page opinion.

Sen. Tim Flakoll, R-Fargo, a member of the Senate Education Committee, requested the opinion. During the 2005 Legislature, Flakoll had protested earmarking state money to benefit private colleges.

"It certainly helps clear up any contention as far as what we can and cannot do," Flakoll said. "It's not a matter of what we'd like to do, or want to do. It's what can you legally do?"

Laura Glatt, the university system's vice chancellor for administrative affairs, said the system's budget includes $3.8 million over two years for student financial aid grants.

For the fall semester, $286,000 in grants have been distributed to 572 students at private colleges, including 364 Mary students and 164 at Jamestown College, Glatt said. The students were slated to get $500 of their $1,000 grants in the fall, and receive the rest in the spring.

Seaworth said the spring's grant distributions for private college students are likely to be adjusted to reflect Stenehjem's opinion. The Board of Higher Education will have to take up the issue, Seaworth said.

"We will need to consider whether we have to reduce the checks for those students in the spring, and if so, for what amount," he said.

Grants for students at public colleges are not affected by Stenehjem's opinion. Glatt said 2,471 students in North Dakota's university system were given $741,300 in grants this fall, while 149 students attending the state's American Indian tribal colleges received $44,700.