South Dakota Protects Free Speech on Campus

(Jonathan Drake/Reuters)
In light of the Trump administration’s new executive order, more states should follow suit.

When Kyle Hartmann hung an American flag in his South Dakota State University dormitory on September 10 of last year, he was doing more than just commemorating a dark day in American life. “My mom in particular knew five people that passed away on September 11 [2001], including a close family friend,” he told me in a phone interview. When he returned from dinner that night, he saw that the flag had been taken down.

Hartmann put it back up with a note explaining its significance, but a university official ordered him to take the flag down because it could potentially offend people. After Hartmann challenged the decision, officials told him that the school’s speech policy was deliberately vague to allow for decisions based on the feelings of the community. He was eventually allowed to put the flag up until the end of the day, when he had to take it down — which resulted in its being displayed only for a total of two hours, he told me. As Hartmann later testified to the South Dakota state legislature, “it is impossible for students to exercise their First Amendment rights when the policy is not accessible or clear.”

Stories such as Hartmann’s explain why President Trump signed an executive order last Thursday directing federal agencies to tie federal grants to schools’ records on free speech. Although the measure contains no specific penalties, it sends a signal to the states that the federal government is monitoring the way First Amendment rights are protected on college campuses. When the president announced this order at the Conservative Political Action Conference in early March, he highlighted another story, that of a California student who had been assaulted for working as a recruiter for a conservative group.

But Hartmann’s story also helps explain why South Dakota governor Kristi Noem signed a law last Wednesday to protect free speech on the state’s six public-university campuses. The new law, nearly a year in the making, could serve as an example for other states that want to protect students’ First Amendment rights so that their universities don’t suffer penalties under the administration’s new policy.

South Dakota may not be the first state that comes to mind when you think of political correctness, but even this deep-red Midwestern state has experienced attacks on free speech on its college campuses. Most of the incidents have taken place at the state’s flagship school, the University of South Dakota. The Foundation for Individual Rights in Education gives the university a “yellow” rating for speech policies that “too easily encourage . . . administrative abuse and arbitrary application.”

Beyond Hartmann’s experience, consider an episode from 2015, when the university shut down the showing of a film titled “Honor Diaries.” Critics denounced the film — which documented the honor killing of women in Islamic culture — as anti-Muslim bigotry, leading the university to cancel the event out of concern for students’ emotional safety. The university provost said that the “format and setting did not allow for appropriate discussion following the screening.” Although the viewing was rescheduled for the following month at a women’s conference, one of the event’s organizers described being “stunned” at the amount of pressure to cancel the event prior to the school’s decision to do so.

Another incident involved a “Hawaiian Day” social event in late February. A student organization at the University of South Dakota Law School changed the Hawaiian theme to prevent “culturally insensitive” practices, such as handing out leis. The school is currently investigating the incident to determine whether the law school’s interim administration pressured the student organization into changing the theme of the party.

According to state representative Sue Peterson, the sponsor of the new bill in South Dakota, this Hawaiian Day event pushed the legislation over the finish line. When she first introduced the bill last year, it promptly died in committee, owing to criticism that it was unnecessary and because the board of regents, which governs the state’s six public universities, promised to enact a new policy to protect free speech. It did so last December. But the Hawaiian Day incident convinced lawmakers that they needed to intervene to force the board to take more-decisive action. The final bill passed the state legislature with overwhelming majorities.

The law requires the state’s six public universities to maintain a commitment to the principles of free expression and to “encourage the timely and rational discussion of topics in an environment that is intellectually and ideologically diverse.” It designates outdoor areas as a public forum for free expression and calls for annual reports from the board of regents on how schools fostered intellectual diversity, along with descriptions of events that impeded the free exchange of ideas.

But while the bill represents a victory for free speech, it could have been stronger. An early draft called for more specifics in defining what events colleges were required to report, including attempts to block or prohibit a speaker, and disciplinary action resulting from speech-related activities. This language was removed from later versions. The bill also lacks detailed enforcement mechanisms. But according to Peterson, “if the campuses fail to comply with this law, there will be a swift and significant legislative response, I can assure you.”

These concerns notwithstanding, South Dakota has taken an important step to defend free speech on its college campuses — especially since President Trump signed his executive order the following day. As Hartmann concluded in his testimony, when it comes to free speech, “policies should be clear and easily understood.” It’s time for more states to protect the many students who have been denied their right to free speech.

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