The Road to Implementing a Free Speech Bill in South Dakota

November 5, 2019

Kevin V. Schieffer
President
South Dakota Board of Regents
306 E. Capital Ave, Ste. 200
Pierre, SD 57501

Dear President Schieffer,

I am delighted that representatives of South Dakota’s public universities have expressed interest at the Government Operations and Audit Committee (GOAC) meeting on October 30 in reading further recommendations from the National Association of Scholars about how best to implement H.B. 1087, South Dakota’s new law to promote free speech and intellectual diversity in the state’s public university system. I am also delighted that the South Dakota Board of Regents has already taken several measures to implement H.B. 1087.¹ I would like to take the opportunity presented by your thoughtful interest to present further recommendations—which we intend to supplement the recommendations I submitted to you in my letter of May 31.²

H.B. 1087 poses a deep challenge to some ideas and practices that are embedded in South Dakota’s public universities—ideas and practices that enjoy strong support from many university officials and others in the state. In that light, implementing H.B. 1087 will be difficult, and whatever the Board of Regents chooses to do will likely be met by vocal and organized opposition. That’s entirely fair in our democratic system, just as it is fair for supporters of the law to press for its full implementation, rather than token adjustments that ignore the spirit of H.B. 1087. The recommendations I make in this letter aim to spell out what a genuine implementation of H.B. 1087 would look like. I realize that some of these would be a heavy lift for the Board of Regents and that, in any case, further public debate lies ahead.

I write as President of the National Association of Scholars (NAS). NAS is a network of scholars and citizens united by our commitment to academic freedom, disinterested scholarship, and excellence in higher education. As part of our mission, we support academic freedom and intellectual diversity throughout American higher education. We have more than thirty years of experience in providing support for the principles and the institutional practice of intellectual diversity.

Western Heritage and American Heritage

The NAS believes that a strong foundation in the Western Heritage and the American Heritage is the best way teach students why intellectual diversity matters, why it is good, why it has been essential for the survival of the American republic, and how best it can be preserved. We also believe that South Dakota’s public universities should teach knowledge of the Western Heritage and the American Heritage as part of their broader civic mission, to create knowledgeable, public spirited, self-reliant citizens of South Dakota and the United States of America. We therefore suggest that the Board of Regents support both intellectual diversity and its broader civic mission by instituting the following programmatic changes.

General Education Requirements

The NAS suggests that the Board of Regents establish new General Education Requirements for Western Heritage and American Heritage. All undergraduates at South Dakota public universities should acquire substantial knowledge of the historical background and principles of intellectual diversity, as well as the historical background and principles that animate the American republic.

1. Western Heritage. We suggest that the Board of Regents establish a Western Heritage general education requirement, consisting exclusively of introductory and survey courses.³
2. American Heritage. We suggest that the Board of Regents establish an American Heritage general education requirement, consisting exclusively of introductory and survey courses.⁴
3. Satisfying Multiple Requirements. Many public universities craft their Diversity General Education Requirements so that they simultaneously satisfy other General Education Requirements.⁵ This procedure simultaneously signals their commitment to diversity and makes sure that students don’t have to pay for too many required courses. We suggest that the Board of Regents consider a parallel strategy to signal its commitment to Western Heritage and American Heritage, and craft its General Education Requirements so that courses taken to satisfy Western Heritage and American Heritage General Education Requirements also satisfy the Social Sciences or Humanities General Education Requirements.
4. World Heritage. Knowledge of the history and civilization of the world is worth acquiring for its own sake, not because it contributes to diversity. We suggest that the Board of Regents consider accompanying Western Heritage and American Heritage general education requirements with a World Heritage general education requirement, consisting exclusively of introductory and survey courses.⁶
5. Qualifying Courses. We suggest that the Board of Regents exclude from the Western Heritage, American Heritage, and World Heritage general education requirements: 1) experiential learning courses; 2) courses exclusively or primarily devoted to subgroups of Americans or other nationalities, categorized by race, sex, class, gender identity, or gender expression; and 3) courses devoted to activism.

Certificate Programs

The NAS suggests that the Board of Regents establish Certificate Programs in Western Heritage and American Heritage at each campus of the South Dakota public universities. We suggest Certificate Programs, because they require minimal expense to set up, and consist entirely of courses already taught in existing departments. These Certificate Programs would demonstrate the Board of Regents’ desire to support South Dakota legislators’ expressed interest in such programs. They would also provide a foundation for future, expanded initiatives to support Western Heritage and American Heritage. Finally, they would help guide the many students interested in studying Western Heritage and American Heritage.

1. Western Heritage. We suggest that the Board of Regents establish an 18-credit Western Heritage Certificate program. Each program should require at least three introductory courses in different departments as part of the certificate requirements.⁷
2. American Heritage. We suggest that the Board of Regents establish an 18-credit American Heritage Certificate program. Each program should require at least three introductory courses in different departments as part of the certificate requirements.⁸
3. Qualifying Courses. We suggest that the Board of Regents exclude from the Western Heritage and American Heritage Certificates: 1) experiential learning courses; 2) courses exclusively or primarily devoted to subgroups of Americans, categorized by race, sex, class, gender identity, or gender expression; and 3) courses devoted to activism.
    

Teacher Education

South Dakota’s public school teachers ought to be prepared to teach K-12 students Western Heritage and American Heritage, not least so that students arriving at South Dakota’s public universities will have a basic foundation in the historical background and principles of intellectual diversity, as well as the historical background and principles that animate the American republic. The NAS suggests that the Board of Regents deepen the knowledge South Dakota’s future schoolteachers possess about Western Heritage and American Heritage.

1. Bachelor’s of Education, Degree Requirements. We suggest that the Board of Regents require all recipients of a bachelor’s degree in education to complete either a Western Heritage Certificate or an American Heritage Certificate.
2. Teacher Licensure. We suggest that the Board of Regents call upon the South Dakota Board of Education to revise its teacher licensure requirements, to require K-12 teachers to possess a certificate in either Western Heritage or American Heritage.
    

School of Civic Leadership

The NAS strongly endorses the Board of Regent’s consideration of Arizona State University’s School of Civic and Economic Thought and Leadership (SCETL), as a model for the creation of parallel schools at individual campuses in the South Dakota public university system.⁹ We believe the creation of an autonomous school, dedicated to intellectual diversity, the Western Heritage, and the American Heritage, would be a very effective way to teach the principles of intellectual diversity, as well as the historical background and principles that animate the American republic. We suggest the following steps to facilitate the creation of a “School of Civic Leadership” (SCL).

1. Mission. We suggest that the Board of Regents declare its commitment to creating a SCL at the University of South Dakota, whose mission will be to disseminate the principles and practice of intellectual diversity, as well as the American republic’s history and principles, both by teaching courses and by sponsoring campus events.
2. Funding Request. We suggest that the Board of Regents request the South Dakota legislature to provide dedicated funding for the SCL. We suggest that the Board of Regents request funding at the level the Arizona State Legislature provided to SCETL, $3 million a year, and that it plan to make that request for five years. We suggest that the Board of Regents also draft a fallback request of $1 million a year, for five years.
3. Initial Program Structure. We suggest that the Board of Regents plan the SCL to begin with the targeted hire of a tenured senior scholar to lead the School, followed by the targeted hires of at least two tenure-track junior scholars. We suggest that the Board of Regents plan the SCL to provide its own “home department” for its faculty. We suggest that the Board of Regents consult with the State Legislature, and with Paul O. Carrese, founding director of SCETL in Arizona, about how best to set up the SCL. We suggest that the Board of Regents endorse the SCETL model of direct accountability to the State Legislature, which includes both funds dedicated directly and exclusively to the School, and annual reports to the State Legislature by the School Director, to verify that the School continues to fulfill legislative intent.
4. Programs. We suggest that the Board of Regents plan the SCL to house undergraduate Major and Minor Programs in Western Heritage and American Heritage. We suggest that the Board of Regents plan the SCL so that it can expand to offer both Masters and Doctoral graduate degrees.
5. Qualifying Courses. We suggest that the Board of Regents plan the SCL to exclude offering: 1) experiential learning courses; 2) courses exclusively or primarily devoted to subgroups of Americans, categorized by race, sex, class, gender identity, or gender expression; and 3) courses devoted to political activism.
6. Private Funding Goals. As the Board of Regents has noted, Arizona State University’s SCETL was built upon pre-existing programs with private foundation support.¹⁰ We suggest that the Board of Regents plan the SCL to seek out private foundation support after its founding, with the goal of making it financially independent of direct support from the State Legislature.
7. A Second SCL. We suggest that the Board of Regents plan to create another SCL at South Dakota State University, once the SCL at the University of South Dakota has established itself. We suggest that the Board of Regents follow the same procedures as for the SCL at the University of South Dakota, informed by the experience it has gained in setting up the University of South Dakota’s SCL.
8. Strategic Plan. We suggest that the Board of Regents begin to draft a strategic plan for the timely creation of a SCL at the University of South Dakota, so that it will be ready to act immediately, when the State Legislature provides funding.

Removal of Diversity Bureaucracies

The NAS reiterates its belief that campus diversity bureaucracies are dominated by staff who have progressive political commitments, and to promote events that express those commitments, to the detriment of intellectual diversity.¹¹ We therefore reiterate our previous suggestions that:

1. 1. the Board of Regents define diversity, equity, and inclusion, and related concepts;
   2. the Board of Regents define the missions and means that will be allowed to achieve diversity, equity, and inclusion; and
   3. the Board of Regents draft a Strategic Plan that will provide a detailed schedule for the South Dakota public and elected representatives, outlining the stages by which they will eliminate the Diversity, Inclusion, and Equity (DIE) bureaucracies in South Dakota public universities.¹²

The NAS observes that many South Dakota legislators have expressed a continued desire for South Dakota’s public universities to remove their diversity commitments, programs, and bureaucracies, as the best way for those universities to provide a campus climate that conduces to intellectual diversity.¹³ We suggest that the Board of Regents should execute this legislative intent—both because it will in itself enhance intellectual diversity, and because it is legislative intent.

The citizens and legislators of South Dakota, and the NAS, are aware that diversity, inclusion, and equity are concepts that can forward noble ideals, worthy of articulation in public policy—but that, unfortunately, diversity, inclusion, and equity currently euphemize commitments to race and sex hiring quotas; transfer of financial resources on the grounds of identity group membership; the funding of justifications for these quotas and transfers, which seek to delegitimize any policy opposition; the prohibition (inhibiting intellectual diversity) of any stated opposition to these quotas, transfers, and justifications; and the abrogation of policies that uphold individual merit and equality of opportunity. We oppose DIE programs as they are, not as what they might be.

We make the following suggestions, to facilitate the Board of Regents’ fulfillment of legislative intent.
 

Legislative Request

The NAS is aware that the Board of Regents will appreciate detailed state legislation, which articulates in writing the legislative intent to remove the DIE bureaucracies from South Dakota’s public universities. We therefore suggest that the Board of Regents request the State Legislature to pass legislation specifying the following measures:

1. Definition. The Board of Regents shall define precisely, for all administrative and legal purposes, diversity, access, civic engagement, inclusion, equity, multiculturalism, and sustainability, or any related concepts.
2. Analyses. The Board of Regents shall create a comprehensive list of all the activities within the universities intended to advance diversity, access, civic engagement, inclusion, equity, multiculturalism, and sustainability, or any related concepts.
3. Catalogue. The Board of Regents shall catalogue all types of documents, policies, and programs with diversity commitments, both language contained within and programs and policies described therein.¹⁴
4. South Dakota Diversity. To forestall attempts to privilege any subgroup, so long as any diversity commitment or program exists in South Dakota public universities, every citizen of South Dakota, by dint of being distinctively South Dakotan, shall satisfy all diversity requirements and aspirations.
5. Removal. The Board of Regents shall revise all types of documents, policies, and programs with diversity commitments, to eliminate both language contained within and programs and policies described therein. The Board of Regents shall remove any program whose substantive commitments amount to diversity, however named.
6. General Education Requirements. The Board of Regents shall remove diversity from all general education requirements, by any university, college, or school.¹⁵
7. Hiring. The Board of Regents shall prohibit the public universities from using diversity, expertise in diversity, or support for diversity, for any preference or requirement for any job, internship, work study, or other form of employment.
8. Grants and Awards. The Board of Regents shall prohibit the public universities from using diversity to decide the recipient of any fellowship, grant, loan, prize, scholarship, tuition remission, sum of money, material benefit, or other award.
9. Student Fees. The Board of Regents shall prohibit the public universities from using any student fee to support any diversity program or activity.
10. Admissions. The Board of Regents shall prohibit the public universities from using diversity as a rationale to admit any student.
11. Recruitment. The Board of Regents shall prohibit the public universities from using diversity as a rationale to recruit any student.
12. Remediation. The Board of Regents shall prohibit the public universities from using diversity as a rationale for any remediation program, or individual admission of a student to any remediation program.
13. Retention. The Board of Regents shall prohibit the public universities from using diversity as a rationale for any retention (student success, etc.) program, or individual admission of a student to any remediation program.
14. Affirmations and Commitments. The Board of Regents shall prohibit the public universities from using diversity in any institutional affirmations or commitments.
15. Public Information. The Board of Regents and each public university shall inform all members of the university community that South Dakota prohibits all diversity commitments; including incoming students during Orientation; all faculty and staff; and posted prominently on their university websites.
16. Individual Rights. The Board of Regents shall guarantee the right of every member of the university to be free from any diversity preference, program, activity, or requirement.
17. Right to Report Diversity Activities. The Board of Regents shall guarantee the right of every member of the university to report the existence any diversity program, activity, or requirement, without fear of retaliation.
18. Ombudsman. The Board of Regents shall employ a salaried Ombudsman on each campus, responsible for hearing complaints about infringements on the right to be free from any diversity preference, program, activity, or requirement; reporting complaints to the President’s Office; and ensuring they receive a speedy resolution.
19. Ombudsman’s Report. Each Ombudsman will submit an annual report directly to the State Legislature about all violations by components or individuals within the public university of the right to be free from any diversity preference, program, activity, or requirement; and what measures were taken to remedy these violations.
20. Complaint Resolution. The Board of Regents shall draft procedures for any member of the university to complain to the Ombudsman; due process for resolving these complaints; and penalties for proven violations.
21. Diversity Reporter. The Board of Regents will nominate a Diversity Reporter, requiring confirmation from the State Legislature, who will report directly and annually to the State Legislature, to certify that each public university possesses no diversity commitments, programs, or staff. The Diversity Reporter will itemize all components of the public university that have failed to comply with all the above charges regarding diversity, and inform the State Legislature of all expenditures that support these individual components in violation of the above charges.
22. Defunding. The State Legislature will defund any component of the public universities that has failed to remove its diversity commitments, programs, or staff.

Accreditation and Other External Licensing

The NAS is aware that South Dakota’s public universities are subject to accreditation, and other forms of external licensing, which require programmatic commitments to diversity and related concepts. We realize that the Board of Regents must account for these external licensing regimes as it seeks to fulfill the State Legislature’s legislative intent. We therefore suggest that the Board of Regents request the State Legislature to pass legislation specifying the following measures:

1. Licensing Organizations. The Board of Regents shall cease cooperation with all licensing organizations that require diversity, access, civic engagement, co-curriculum, experiential learning, global citizenship, inclusion, equity, multiculturalism, sustainability, or any related concepts.¹⁶
2. Higher Learning Commission. The Board of Regents shall require its public universities to oppose, refuse to endorse, call for the abolition of, and cease to cooperate with all accreditation standards by the Higher Learning Commission that require diversity, civic engagement, co-curriculum, experiential learning, inclusion, equity, multiculturalism, service-learning, sustainability, or any related concepts; including current standards 1.C, 3.B.4, and 3.E.1,¹⁷ and also standards coming into effect September 1, 2020 including 1.C, 3.B.3, 3.C.1, and 4.B.1.¹⁸
3. Diversity Accreditation Exemption. The Board of Regents shall request the Higher Learning Commission to determine that South Dakota’s public universities will not lose accreditation for failing to comply with these standards.
4. United States Department of Education. The Board of Regents shall request the United States Department of Education (ED) to determine that no institution of higher education will lose accreditation for failing to comply with these standards.
5. Legal Measures. The Board of Regents shall, if necessary, sue the Higher Learning Commission and the ED to provide relief from these standards.

The NAS is aware that the measures we recommend raise a serious Constitutional question, about whether a private organization with quasi-governmental powers, such as the Higher Learning Commission, has the power to override a state government in determining the administrative code of a public university. We believe that the Board of Regents will need the sustained support of the State Legislature in any confrontation with the Higher Learning Commission or the ED—and, ideally, the support of other State Legislatures and Boards of Regents, to mount a joint challenge against diversity accreditation requirements. We urge the Board of Regents to take the initiative to gather this support from the State Legislature, and from other State Legislatures of Boards of Regents. We make this recommendation, fully aware that it is no light undertaking. Yet we believe it is necessary, to fulfill the State Legislature’s mandate to enact intellectual diversity in South Dakota’s public universities.

Summary

The NAS reiterates its recommendations in my previous letter, for such measures as “The Campus Intellectual Diversity Act,” as a model for regulations to provide the data necessary for legitimate and measurable metrics of intellectual diversity. Here we emphasize suggestions for ways to fulfill the legislative intent of the State Legislature, as you implement H.B. 1087. In sum, our suggestions are:

1. Establish new General Education Requirements, Certificate Programs, and Bachelor’s of Education Requirements in Western Heritage and American Heritage;
2. Request the State Legislature to fund a School of Civic Leadership;
3. Request the State Legislature to pass legislation specifying how the Board of Regents should remove the public universities’ diversity commitments; and
4. Request the State Legislature to pass legislation specifying how the Board of Regents should remove the diversity requirements imposed by accreditors and other external licensing organizations.

We make these recommendations to the Board of Regents in full confidence that it seeks enthusiastically to infuse the spirit of intellectual diversity throughout South Dakota’s public universities.

Yours sincerely,

Peter W. Wood
President
National Association of Scholars