Further reforms needed in South Dakota Board of Regents’ speech policies

In December, FIRE wrote about some positive developments with respect to the new speech policies adopted by the South Dakota Board of Regents. At the time we indicated that, despite our genuine appreciation for the improvements in those revised policies, FIRE still had some important concerns.

One of the biggest problems with the Board of Regents’ prior policies was that they included anti-harassment provisions that were exceptionally overbroad. As we explained previously, the new anti-harassment policy is a significant improvement, but it still doesn’t fully comply with the standard set forth by the Supreme Court of the United States in Davis v. Monroe County Board of Education. In Davis, the Supreme Court defined student-on-student harassment as conduct “that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

The new policy comes close to the Davis standard, but falls a bit short. It defines harassment as:

Conduct toward another person that is severe or pervasive enough to create an objectively and subjectively intimidating hostile or demeaning environment that substantially interferes with the individual’s ability to participate in or to realize the intended benefits of an institutional activity, employment or resource.

The subtle difference is that Davis requires the conduct to be severe and pervasive, while the Board of Regents’ definition requires one or the other. The policy could thus allow for punishment of student speech that does not rise to the level of actionable harassment. We urge the Board of Regents to further revise this policy and implement the Davis standard precisely as it was set forth in the Supreme Court’s decision.

An additional problem with the section of new policies dealing with harassment is its inclusion of the following language:

If the reported conduct, while not yet harassment, was targeted at a specific person or persons, was abusive, and served no bona fide academic purpose, the Title IX/EEO coordinator will contact the individual whose conduct prompted the report to discuss the conduct and its relation to federal and state law and to Board and institutional policies.

This well-intended addendum states that even if conduct falls short of actionable harassment, the university may intervene if the conduct was “abusive” and “served no bona fide academic purpose.” Neither term is defined, and FIRE is concerned about a potential chilling effect that is a foreseeable consequence of students being hauled in front of administrators to have meetings about conduct that does not meet the stated definition of harassment. This language invites abuse from campus administrators, and FIRE is concerned when administrators are empowered to wield vague policies and unconstitutionally punish protected speech.

Additionally, the Board of Regents’ policy with respect to the recognition of student organizations is deeply problematic. The language provides criteria that campus administrators could place on student organizations to obtain official recognition from their institution. The problem is that after setting forth those criteria, the policy adds a seemingly limitless catch-all provision allowing institutions to “impose additional or more restrictive conditions on official recognition.” The potential for abuse of this unlimited discretion to impose additional restrictions on the recognition of student organizations threatens the freedom of association of students throughout the state.

With regard to student organizations, the policies maintain a significant flaw. As we mentioned in our written testimony and as stated in FIRE’s 2018 policy statement on political speech on campus, public colleges and universities must protect their students’ First Amendment rights and allow them to engage in political activity, expression, and association on campus. In our 2018 statement, we wrote that:

Student groups at public universities may not be denied access to funding or university resources available to other groups because of their beliefs. When generated by student activity fees, student activity money constitutes “a fund that simply belongs to the students.” Political events, speaking engagements, and other partisan activities hosted by a student organization and funded by student activity fees are not institutional activities. When a public university decides to use student fees to fund a multiplicity of independent student groups, each student group retains its status as a private party expressing its personal viewpoint and cannot be censored by the university, nor cautioned against using allocated fees or facilities for “partisan purposes” or other political speech if those fees or facilities could be used by other groups for the same activity. If a public university or student government denies such funding to a student organization because of its partisan message or ideology, it is engaging in unlawful viewpoint discrimination.

The policy maintained by the Board of Regents continues to allow for unlawful discrimination against political student organizations and must be revised.

Finally, we are concerned that the policies have shortcomings with respect to their treatment of institutions’ authority to maintain time, place, and manner restrictions. The policy reads:

[i]n addition, the institution may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the institution. But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the Board’s commitment to a free and open discussion of ideas.

While that paragraph offers helpful general guidance, a comprehensive policy would explain that time, place, and manner restrictions, in addition to being reasonable, must also be content- and viewpoint-neutral, be narrowly tailored in furtherance of a significant institutional interest, and leave open ample alternative means for communication. Currently, however, these criteria are not set forth. This is a perplexing omission given that the new revisions were spurred by legislative hearings aimed to ensure that campus time, place, and manner restrictions were constitutional.

When reviewing these policy changes, it is evident that good faith is motivating the reforms, and we appreciate that some of the right steps are being taken. We look forward to continuing to work with the Board of Regents and, ultimately, the state legislature to codify speech policies that will advance the constitutional rights of students today and in the years to come.