South Dakota Board of Regents improves several speech policies, adopts ‘Chicago Statement,’ but there is work left to be done

In a regularly scheduled meeting in early December, the South Dakota Board of Regents improved a number of policies impacting freedom of expression on campus, including the adoption of a “Commitment to Freedom of Expression” modeled after the “Report of the Committee on Freedom of Expression” at the University of Chicago (better known as the “Chicago Statement”).

FIRE is pleased to see the board’s revision and approval of these policies, many of which came in response to recommendations submitted by FIRE and other organizations as part of a public comment period. We now hope that the board’s actions will galvanize further policy improvements within the individual campuses that are governed by the board. Currently, the state of South Dakota has no institutions earning FIRE’s highest, “green light” rating for campus speech codes, so there is plenty of work to be done.

Among its revisions, the board changed the “Harassment including Sexual Harassment” policy that previously prohibited, in relevant part, conduct that has “purpose or effect of creating 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 or resource.” In place of this broad, amorphous standard, that policy now provides that actionable harassment is:

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.

FIRE urges colleges and universities to define student-on-student harassment as conduct that is, in pertinent part, sufficiently “severe, pervasive, and objectively offensive” (emphasis added), pursuant to the Supreme Court’s decision in Davis. v. Monroe County Board of Education (1999). Short of that exacting standard, however, the revisions made by the board greatly improve this policy. It is our hope that this will lead to a better understanding of hostile environment harassment within the SDBOR member institutions, thereby preventing the misapplication of harassment rationales to curb and punish student speech — a problem that we see too often around the country.

In terms of other policy improvements, the board revised the “Acceptable Use of Information Technology Systems” policy that formerly restricted the use of information technology to send “abusive messages,” and additionally clarified the “Political Activity” policy in order to ensure that employees (including faculty members) are able to retain their right to political expression, such as taking part in “political campaigns” and “other activities with the purpose of influencing the nomination or election of a candidate.”

In addition to improving several policies, the board voted to adopt the “Commitment to Freedom of Expression,” sending a message to faculty, students, and the public that all six of its member institutions are committed to upholding the principles of freedom of expression. “The Board,” the statement pledges, “fully respects and supports the freedom of all members of the institutions’ community to discuss any problem or issue that presents itself.” The endorsement of this statement is a great step in the board’s attempt to improve the climate for free expression on all of its campuses, to the enormous benefit of faculty and students at these institutions. As such, we are pleased to add the board to our list of adopters of the Chicago Statement.

A final highlight of the Commitment appears near the conclusion, where the board confirms that the university system is so devoted to these values that it pledges to “interpret policies consistent with this commitment.” This is of great consequence because it shows that the board not only subscribes to these principles, but that it also plans to construe all relevant policies in a way that respects the university system’s dedication to freedom of expression.

Again, FIRE is overall pleased by the board’s actions. These policy changes are a step in the right direction, and we hope to see more positive developments within the university system in the near future. There are still shortcomings in the system policies, so there is plenty of work left to be done in South Dakota, both at the individual campus level and within the state legislature. We’ll have more about those issues in the near future.