"a Long and Winding Road": the South Dakota Intellectual Diversity Bill of 2019

• Publication year: 2021
• Citation: Vol. 98

98 Nebraska L. Rev. 674. "A Long and Winding Road": The South Dakota Intellectual Diversity Bill of 2019

"A Long and Winding Road": The South Dakota Intellectual Diversity Bill of 2019

Jon K. Lauck(fn*)

TABLE OF CONTENTS

I. Introduction.......................................... 674

II. Background........................................... 675

III. Prehistory............................................ 678
A. 2006 Legislation................................... 678
B. 2018 Legislation................................... 679
C. BOR Policy Changes .............................. 681

IV. Legislative History.................................... 682
A. Framing the Bill.................................. 682
B. The House of Representatives ..................... 686
C. The State Senate.................................. 688

V. Analysis.............................................. 694
A. The Chicago Statement............................ 694
B. Speech Zones...................................... 697
C. Student Group Funding and Free Exercise......... 699
D. Intellectual Diversity.............................. 702
E. Harassment....................................... 708
F. Developing a Dakota Diversity Model.............. 709

VI. Conclusion............................................ 717

I. INTRODUCTION

During the winter of 2019 and after two years of debate, South Dakota became the first state in the nation to adopt legislation promoting intellectual diversity at its state universities. House Bill 1087 was adopted in the wake of growing public concern about American univer-

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sities becoming too ideologically one-sided and too prone to censorship and restrictions on free speech. Much of the friction underlying the framing and passage of H.B. 1087 involved disagreements between state legislators and the South Dakota Board of Regents (BOR), which is the body appointed by the governor to oversee the state university system and which generally seeks to maintain its autonomy.(fn1) Despite this friction and many questions of authority arising from it, the South Dakota Supreme Court has concluded that the BOR is subject to the control of the legislature.(fn2) This Article explains the legislative history behind H.B. 1087, discusses the accompanying legal questions raised by its passage, and highlights the new model of diversity created by H.B. 1087. Given the prominence of the public policy issues underlying H.B. 1087, other states are likely to follow suit with similar legislative debates and laws.

II. BACKGROUND

Christian colleges, ubiquitous in the Midwest, dominated the early years of American higher education.(fn3) This trend continued into the late nineteenth century in South Dakota, which saw the formation of several private religious colleges, such as Augustana College, Dakota Collegiate Institute (later University of Sioux Falls), Groton Collegiate Institute, Redfield College, Yankton College, Mount Marty College, Presentation College, Columbus College, Pierre University (later Huron College), and Dakota Wesleyan University. At the same time, American public higher education grew and witnessed the creation of important state-controlled institutions such as the University of Wis-

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consin, the University of Minnesota, and Michigan State University- all of which were abetted by the federal Morrill Act.(fn4)

In South Dakota, state-controlled institutions were similarly established. These included "Normal Schools," or institutions for training elementary school teachers, at Madison, Springfield, Aberdeen, and Spearfish, in addition to the University at Vermillion, the State College of Agriculture and Mechanic Arts at Brookings, and the School of Mines in Rapid City.(fn5) These colleges eventually became universities. The college at Springfield, however, closed after several legislative attempts that finally culminated in a bruising political battle during the 1980s.(fn6) Many other legislative reform efforts have been launched to restructure higher education in South Dakota.(fn7) In 1953 and 1963, for example, the legislature passed laws to fund studies designed to lead to a reorganization of South Dakota higher education.(fn8) Additionally, in 1968 the legislature created the Office of Higher Education and ordered it to create a master plan for the state's universities, a process that led to a major battle over the idea of moving the engineering program at South Dakota State University to the School of Mines.(fn9) Throughout the 1960s and 1970s there were political strug-

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gles over forcing South Dakota universities into a single university system, closing campuses, gubernatorial control over higher education, and other matters.(fn10) These legislative arguments and many other disputes among experts over the proper organization of higher education in South Dakota can be reviewed and analyzed by consulting the numerous studies conducted on the health of South Dakota's public colleges.(fn11)

What remains clear throughout the many debates is that public higher education in South Dakota has always been subject to legislative control.(fn12) While the South Dakota Constitution conferred the power to manage state institutions of higher education upon the BOR at statehood, the legislature maintained control.(fn13) Regental management was subject to "such rules and restrictions as the Legislature shall provide."(fn14) When the state's Normal Schools, which were designed to train grade school teachers, also began to operate as teachers' colleges, which were designed to train high school teachers, the Supreme Court made clear that such a change in focus was not allowable without legislative approval.(fn15) The Supreme Court declared that "[i]t is for the Legislature to determine the educational policy of the state, not for this court or the regents."(fn16) Courses of study and the nature and purpose of state institutions of higher education were subject to legislative control.(fn17) The BOR was not allowed to "expend public funds for education, unless the education for which it is expended is authorized by law."(fn18) South Dakota case law requires the "acts of the regents" to be "authorized by the

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statutes" passed by the legislature.(fn19) The long-term precedents establishing legislative control of higher education have been recognized consistently in recent decades by the courts.(fn20) Legislative control is also clear from various statutory requirements that govern South Dakota higher education.(fn21)

III. PREHISTORY

A. 2006 Legislation

The 2019 intellectual diversity legislation adopted in South Dakota has an extensive prehistory. This prehistory includes a debate during the 2006 South Dakota legislative session over related legislation.(fn22) The session saw the introduction of House Bill 1222, a bill to "require regental institutions to annually report to the Legislature regarding intellectual diversity."(fn23) H.B. 1222, introduced by Republican Representative Phyllis Heineman, chair of the House Education Committee, consisted of two sections. The first required the filing of annual reports explaining what steps universities took to promote intellectual diversity. The second listed specific steps that might be taken to advance the first section, including steps related to promoting free speech on campus.(fn24) The American Council of Trustees and Alumni (ACTA), which had recently released a report entitled "Intellectual Diversity: A Time for Action," actively supported H.B. 1222.(fn25)

H.B. 1222 had twenty-five cosponsors: twenty-two Republicans and three Democrats.(fn26) It passed out of the House Education Committee

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in a 10-5 vote and passed the full House in a 42-26 vote.(fn27) The Senate State Affairs Committee then received H.B. 1222, where main sponsor Senator Lee Schoenbeck and BOR Executive Director Tad Perry had a sharp exchange.(fn28) Schoenbeck recited various reports that the BOR already filed, including a diversity report, and challenged the BOR's argument that another report would be out of the ordinary.(fn29) H.B. 1222 passed out of the Senate committee in a 6-3 vote and went to the Senate floor, where, in the final days of the session, it failed 15-18 after heavy lobbying in opposition to the bill from the BOR, the American Civil Liberties Union, and teachers unions.(fn30) After the legislative battle, the BOR agreed to file voluntary reports, which ended after a few years.

B. 2018 Legislation

In 2018, the South Dakota Legislature revisited the issues of free speech and intellectual diversity on campus. Several issues re-started the debate. In 2017, the Foundation for Individual Rights in Education (FIRE) had given the University of South Dakota a "red" designation-a warning that it was violating speech rights through practices such as restrictive "speech zones" and its Guidelines for the Awareness and Prevention of Acts of Cultural Insensitivity and Bullying at USD.si

Legislators became aware of how the President's Council on Diversity and Inclusiveness at USD issued the Guidelines for the Awareness and Prevention of Acts of Cultural Insensitivity and Bullying and how these guidelines restricted speech that might cause "hurt feelings."(fn32) The student newspaper at USD editorialized in favor of ad-

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dressing these guidelines and other speech infringements highlighted by FIRE.(fn33) Another speech...