Free Speech and Intellectual Diversity in South Dakota


NAS is delighted to learn that the South Dakota Legislature has passed HB 1087, a bill to promote free speech and intellectual diversity in the state’s public university system. The bill has been sent to Governor Kristi Noem, who is expected to sign it. When she does, South Dakota will become the first state in the nation to have passed legislation to protect intellectual diversity on campus. South Dakota’s Board of Regents distinguished themselves in December by endorsing freedom of speech and intellectual diversity. Now South Dakota’s legislature and governor have emerged as champions of liberty. South Dakota has written a splendid chapter in our nation’s history.

We are also sad that such a measure is necessary. Properly functioning universities should not need laws to require their faculty, administrators, and students to respect free speech and intellectual diversity. But our universities are not functioning properly. Illiberal, intolerant ideologues have seized control of our universities nationwide, and have turned America’s campuses into an archipelago of repression in a land of freedom. In these circumstances, America’s elected representatives ought to pass laws to protect free speech and intellectual diversity.

South Dakota’s law is particularly valuable, because it will allow legislators in other states to see how such a law works in practice. For example, South Dakota’s HB 1087 designates outdoors areas on public university campuses as “designated public forums,” subject to “reasonable time, place, and manner restrictions” that are narrowly tailored and “content- and viewpoint- neutral.” Education reformers have debated about whether the best solution for free speech on campus is the “designated public forum” solution. North Carolina’s Campus Free Speech Act also uses the designated public forum solution. NAS thinks that solution is a good idea. HB 1087’s language properly frames how universities should accommodate themselves to designated public forum status. All Americans will now be able to see how a designated public forum works in practice on campus, and judge whether it is the best way to guarantee free speech.

South Dakota has also passed a bill that states principles and expectations, and requires the Board of Regents to report to the Governor and the Legislature about “any events or occurrences that impeded intellectual diversity and the free exchange of ideas.” But it provides no enforcement mechanism other than publicity. We worry that the lack of an enforcement mechanism will encourage academic administrators and faculty to continue to suppress freedom of speech and intellectual diversity. Yet we believe it is appropriate for government to intrude as little as possible in academic self-governance. We also believe the American public ought to see whether stating principles and expectations will be enough to restore liberty to campus. If South Dakota’s bill demonstrates that administrators and faculty cannot be shamed into respecting freedom, then the public will rightly support its representatives in passing a stronger bill with an enforcement mechanism. But if HB 1087 is enough to restore liberty to campus, we will be delighted.

Every part of HB 1087 depends on its enforcement. This requires continuing oversight by the Board of Regents, continuing scrutiny by South Dakota’s Legislature and Governor, and a concerted effort by both these bodies to ensure that the presidents chosen to lead South Dakota’s public universities dedicate themselves to fulfilling both the spirit and the letter of HB 1087. HB 1087 should not be sabotaged by foot-dragging and unwilling acquiescence.

NAS regrets that HB 1087 no longer includes a measure that was part of an early draft of the bill—a requirement that South Dakota undergraduates “demonstrate the successful completion of three credits in the area of United States history and three credits in the area of United States government.” Eight states already have laws that require their public universities to teach at least one course in American and state history and/or government: Arkansas, California, Georgia, Missouri, Nevada, Texas, Utah, and Wyoming. We believe it would be an excellent idea for South Dakota to join their number, and we urge the South Dakota legislature to revive this measure as a stand-alone bill. We would recommend, however, that the revived bill specify that students take survey courses in United States history and government, to make sure that their public universities do not try to evade the intent of the bill by allowing (for example) a course in identity-group studies to qualify as a course in United States history.

NAS also commends the other education reformers nationwide who have been working to restore free speech and intellectual diversity to our nation’s campuses. The Goldwater Institute has published an excellent model Campus Free Speech Act, and Stanley Kurtz has drafted a model Campus Intellectual Diversity Act. North Carolina has passed a Campus Free Speech Act, which overlaps in some of its goals with South Dakota’s HB 1087. We encourage education reformers to look at these models, as well as at South Dakota’s HB 1087.

But South Dakota’s bill has actually passed the legislature and will be law as soon as Governor Noem signs it. The National Association of Scholars applauds South Dakota’s legislators and governor, and encourages their counterparts in all the other states to follow in their footsteps.

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