South Dakota governor issues executive order banning CRT in public schools, after signing bill rejecting ‘divisive concepts’ in state universities

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After the governor of South Dakota signed into law a bill forbidding public universities from engaging in instruction related to so-called critical race theory (CRT), an academic concept that analyzes and critiques racial disparities in American legal systems and policies, she signed an executive order to restrict further “inherently divisive concepts” from the classroom. 

Key Players

Gov. Kristi Noem (R) of South Dakota, elected in 2018, has signed numerous hotly contested bills. Historically, she has been a close ally of former President Donald Trump, defending his actions and receiving endorsements from him for her reelection. Prior to this bill, in February 2022, Noem signed into law another one that bans transgender girls and women from being part of school sports teams, making her the first governor to endorse anti-transgender legislation in 2022. 

The South Dakota Board of Regents is a governing body in control of six public universities in the state. The South Dakota Board of Technical Education consists of nine members, appointed by the governor, who oversee the state’s technical college system. 

Further Details

H.B. 1012 bans public universities in South Dakota from using training and orientation materials that could cause racial “discomfort” for students and employees, according to The Hill. 

On February 15, 2022, state representatives passed an earlier version of the bill on a 54-14 vote, the Argus Leader reported. In the state house of representatives, Republicans have an overwhelming majority of 62-8. Republican state Reps. Roger Chase, Jess Olson, Tamara St. John, Mike Stevens, Mark Willadsen, and Dean Wink crossed party lines to vote against the measure. 

On March 7, 2022, state senators passed the bill on a 27-8 vote. In the state senate, Republicans have an even more lopsided majority of 32-3. Republican state Sens. Jean Hunoff, Timothy R. Johns, Arthur Rusch, V. J. Smith, and David Wheeler voted against their party. 

While the bill does not directly mention CRT in its text, it lists seven “divisive concepts” the South Dakota Boards of Regents and of Technical Education are prohibited from incorporating into their training orientation. Furthermore, the law prohibits public universities from requiring students and employees to engage in orientation that “teaches, advocates, acts upon or promotes divisive concepts.”

The first divisive concept prohibits training “that any race, color, religion, sex, ethnicity or national origin is inherently superior or inferior.” The following six are grounded in a similar foundation. For instance, the sixth concept prohibits training that people “should feel discomfort, guilt, anguish, or any other form of psychological distress on account of the individual’s race, color, religion, ethnicity, or national origin.”

But although these divisive topics are banned from training orientations, the bill does not prohibit professors from teaching such concepts in a classroom setting, the Star Herald reported. Jett Jonelis, an American Civil Liberties Union (ACLU) advocacy manager, said that such a dynamic “creates more questions than answers,” adding that H.B. 1012 burdened state educators and administrators to figure out how to navigate the law. 

Anticipating Noem’s signature, the ACLU of South Dakota released a statement after the bill passed in the state senate. “It opens the door for a wide range of interpretations that could be used to chill free speech and academic freedom, discouraging open and honest discussions about systemic racism in classrooms and in higher education communities. That House Bill 1012 passed shows the very need for the types of discussion our government is trying to prohibit,” Jonelis said. 

On March 29, Noem signed HB 1012 into law. 

“No student or teacher should have to endorse Critical Race Theory in order to attend, graduate from, or teach at our public universities,” Noem stated. “College should remain a place where freedom of thought and expression are encouraged, not stifled by political agendas.”

Despite no CRT references in the text, Noem said the law “prohibits colleges from requiring students and teachers to attend trainings or orientations based on Critical Race Theory.” 

According to Nathan D. Lukkes, the general counsel for the South Dakota Board of Regents, the board supported the bill because there was nothing in it that might “be construed to inhibit or violate the First Amendment rights of any student or employee.”

Outcome 

Senate Democrat on education committee speaks out

Sen. Troy Heinert (D), a member of the Rosebud Sioux Tribe, as well as the only Democrat on the Senate Education committee, voted against the bill. Heinert worried that the order would “perpetuate” racism in South Dakota, and ban instruction related to atrocities known to have been committed against Native American peoples. 

Noem signs additional executive order

On April 5, Noem signed a supplemental executive order restricting the state’s education department from teaching CRT in any of the state’s accredited K-12 schools and directed the education secretary to find and end policies that relate to the promotion of “inherently divisive concepts,” The Hill reported. 

In her executive order, Noem asserted that CRT is a “political and divisive ideology that teaches a distorted view of the United States of America and its institutions,” saying it “compels students to view the world through a purely racial lens and to judge others based on the color of their skin rather than the content of their character.”

While the Associated School Boards of South Dakota had criticized the bill as “unnecessary and unclear” during the legislative session, it did not immediately comment on the order.