How Far Will Higher Ed’s Culture Wars Go? South Dakota Is Running Previews

It was around 11:30 p.m. on a winter night in 2019 when Thomas Geu’s phone started ringing. Geu, then dean of the University of South Dakota’s law school, knew that a call from the university’s president at that hour couldn’t be good news. He was right.

There had been a kerfuffle in the law school that day, and news of it was starting to spread. A group of law students who had planned a “Hawaiian Day” social event had scrapped the name after another student complained that the theme might be culturally insensitive to indigenous people.

The true story, as Geu (pronounced “gooey”) understood it, was innocent enough. Hoping to avoid controversy, the party planners had decided on their own — without any administrative mandate — to rechristen the event as “Beach Day.” But by the time the president called, a conservative blog had picked up the story, casting it as another example of politically correct professors spoiling everyone’s harmless fun.

The facts of the case didn’t matter much. Perception was reality, and Sheila K. Gestring, the university’s president, seemed to understand that as well as anybody.

“She said the timing couldn’t be worse,” Geu recalled in a recent interview with The Chronicle.

South Dakota’s communications office did not respond to emails requesting comment from Gestring.

The president knew something Geu did not. Earlier that day, the state legislature had effectively killed an “intellectual diversity” bill that would have saddled the university with numerous reporting obligations and mandated new course requirements in history and government. Like other conservative legislation popping up across the nation, the bill presupposed that liberalism runs amok in higher education and ought to be put in check by force of law. It was dead for now, but Hawaiian Day was the sort of controversy that could give it new life.

It did just that.

Within a few weeks, South Dakota passed a free-speech and intellectual-diversity bill, requiring public universities to report on their efforts to even the ideological scales on campus.

After the bill passed, Sue Peterson, a Republican sponsor of the legislation, told The College Fix, a conservative website, that the bill was a blow to the “national epidemic” of leftist bias in higher education.

The Hawaiian Day debacle, which played out a year ago, was an inflection point in a long-running push-and-pull that continues between South Dakota’s legislature and its six public universities, which serve about 35,000 students.

The state has emerged as a particularly potent example of a national trend, as lawmakers across the country seek to set policy for public universities with an eye on reining in wayward politics. Scrutinizing institutions’ commitment to free speech, scanning for political bias in the classroom, questioning diversity initiatives, fighting collective bargaining: South Dakota has become a staging ground for the fiercest, most polarizing battles.

When the Hawaiian Day story broke, Kevin V. Schieffer was in Mexico, looking for respite from South Dakota’s harsh winter. As president of the South Dakota Board of Regents, Schieffer knew how politically explosive the law-school episode could be. Over the past eight months, he had been fielding complaints from lawmakers about left-wing professors and the squelching of free speech. Now this.

By the time Schieffer heard about Hawaiian Day, the story was three or four days along, and he recalls being “fairly annoyed” that he hadn’t been briefed sooner. It had entered the political bloodstream by way of South Dakota War College, a conservative political blog.

“No free-speech problems at our university campuses,” the blog post said with obvious sarcasm. “None at all.”

A day later, the story spread to the Argus Leader, a daily newspaper in Sioux Falls. Before long, Fox News was running with it. The former Fox News anchor Bill O’Reilly, unable to contain his laughter over the South Dakota silliness, weighed in with a video posted on his website.

An internal investigation of the incident would later conclude that the students had changed the event name without any input from administrators, an important fact that was lost in the early rounds of news coverage. It was true, however, that a staff member, responding to the students’ pleas for guidance amid the name-change backlash, had said in an email that they should not distribute leis at the party because doing so could be “culturally insensitive.” This was a mistake, the university later conceded, because it made administrators’ advice sound like a directive.

“As dean, I was king of the process,” Geu says, “so that’s my fault.”

Schieffer, a conservative who had worked for years in Republican politics, was sympathetic to concerns about liberal dominance at the university. But he saw the Hawaiian Day episode as a “case study in the anatomy of political media manipulation.” An incomplete and misleading story, posted on a conservative blog, shaped the narrative before the university had a chance to correct it, he said. By the time the facts came to light, it didn’t matter.

“It would be too far to say it was a hoax,” Schieffer said. “But it definitely was a large fabrication and a very interesting commentary on how the modern media works. I think most folks involved with it recognize it was not a violation of speech policy and largely manufactured.”

The story bears similarities to an episode at Oberlin College in 2015, when a few student complaints about cafeteria sandwiches that were being passed off as banh mi were distorted by news organizations and politicians who cast the affair as evidence of excessive political correctness.

But Oberlin, a private liberal-arts college in Ohio, doesn’t have to answer to a phalanx of conservative lawmakers ready to legislate its policies and curriculum. The University of South Dakota does.

Months before Hawaiian Day, the fight over free speech in South Dakota was already ramping up. In the summer of 2018, Rep. Lee Qualm, the Republican majority leader in the South Dakota House of Representatives, had sent the regents one of several letters from lawmakers about the supposed dearth of “intellectual diversity” across the university system. Conservative voices, he suggested, were being drowned out by liberal professors and diversity officers.

Qualm started off with 19 questions for Schieffer. Among other things, he wanted to know:

• Would the regents support including political diversity as “a major factor to be weighed” when hiring faculty? Might it not be better to let administrators hire professors, bypassing faculty committees that could be “stacked” to inhibit intellectual diversity?

• Would the regents support hiring a visiting scholar in conservative thought and policy, as the University of Colorado at Boulder had done?

• Diversity and inclusion offices may be responsible for inhibiting free speech, Qualm suggested. What do these offices do at South Dakota’s institutions? What are their budgets? Who works in these offices?

• Would the regents consider creating programs based on “constitutionalism” and “classic books”?

• Do courses on “diversity, multiculturalism, and/or social justice” compete for resources with “traditional education in civics, history, and government”?

• Have any public funds been used to support efforts of the Black Lives Matter movement at South Dakota State?

In their response, which spanned more than 400 pages of answers and attachments, Schieffer and the board’s staff said that they found no evidence of an “ideological imbalance” adversely affecting the university’s students. Moreover, they said, hiring or firing professors based on their politics would run afoul of state law.

Individual institutions across the system labored to answer the lawmaker’s questions, too. But sometimes they struggled, as when asked if there were courses that offered “a counter point of view to social justice and equity.”

Befuddled, officials at South Dakota State University responded, “What is the counter point of view to social justice and equity?”

The regents’ correspondence continued with a few other lawmakers into the fall of 2018, when the board approved a draft version of a new policy on free expression. Drawing on the University of Chicago’s statement on the subject, which has been adopted as a model for other colleges, South Dakota’s proposed policy stated that the university should not “attempt to shield individuals from viewpoints they find unwelcome, disagreeable, or even deeply offensive.”

The proposed policy, in some respects, went further than the Chicago statement. It codified that encouraging “professional diversity in faculty” was “essential” to the University of South Dakota’s mission.

But for some lawmakers, that didn’t go far enough.

“Intellectual diversity.”

Those were the magic words — not “professional diversity” — that the lawmakers needed to hear, and yet they appeared nowhere in the Board of Regents’ proposed free-expression policy. Why had the board, rather than use the “more appropriate phrase,” opted instead for something so “vague and uncertain?” legislators asked in a letter.

“Professional diversity,” while not explicitly defined by the regents, would appear to suggest that the mingling of different academic disciplines, which happens in any university setting, helps institutions to achieve a diversity of thought and encourages robust debate. But that is a different notion than “intellectual diversity,” which, over the course of the past 15 years, has gained a lot of traction in conservative circles.

As popularly understood, intellectual diversity implies the need for college faculties, which tend to skew left politically, to strive for greater ideological balance. It is a concept common in the writings of David Horowitz, a writer who led the charge against liberalism in higher education.

When the South Dakota board approved the final version of its policy, in December of 2018, the words “professional diversity” were replaced with the phrase “intellectual diversity.” Schieffer, the board president, said he thought the words better reflected “the literature” upon which the board was drawing for its policy. But Joan Wink, another university regent, said she recognized the phrase as politically loaded.

“It became more and more clear that perhaps ‘intellectual diversity’ was code speak for something else,” said Wink, a South Dakota native who has worked as an adjunct professor at Black Hills and South Dakota State Universities

Wink, who stressed in an interview with The Chronicle that she could not speak for the board, said she came to understand that an “intellectually diverse” person was, in fact, a “right-leaning, ideologically grounded person.”

South Dakota’s nine current regents were all appointed by Republican governors, who have held power in the state for more than 40 years. Six of the nine are men, and five have business experience, according to their online biographies. Wink, a professor emerita of languages at California State University at Stanislaus, stands out as both an academic and a Democrat.

Wink was “frustrated,” she said, that the board became consumed by questions of intellectual diversity, which seemed most important to just four lawmakers, a group that included the House and Senate majority leaders, who were corresponding with the board. A few legislators can have a significant influence on policy in a state as small as South Dakota, particularly if leaders get involved.

The board took the lawmakers’ concerns seriously, Wink says, perhaps at the expense of other priorities.

“It did take a lot of time,” she said. “I think it wasted time, when we could have been focusing more on how to get more money to help students go to school.”

Schieffer, however, saw the board’s efforts as time well spent. He felt in his gut that ideological balance could be a problem in the university system, he said, and he thought this was a worthy area of inquiry for the board. He acknowledged, however, that the legislators had exerted political pressure on the regents to act. That’s normal, he said, and healthy.

“Political pressure is freedom of expression, for crying out loud,” said Schieffer, who previously served as chief of staff to Larry L. Pressler, a former Republican U.S. Senator. “That doesn’t mean we need to get all weak in the knees and silly and capitulate to things that don’t make sense. It does mean we shouldn’t be so arrogant as to think somebody else might not have an idea worth exploring or, if nothing else, just have a fair question that needs answering.”

Even after the board adopted its free-speech policy, the same cadre of lawmakers accused the regents of evasiveness, questioning in a letter if the board had acted in “stark bad faith.” As their inquiries persisted, Schieffer showed some frustration.

“I strongly disagree with the repeated claims that the Board staff has failed to answer questions,” Schieffer wrote in a letter to the lawmakers on January 3, 2019. “Those claims are made with such frequency as to suggest to me that repetition of the charge is being used as a substitute for evidence of the alleged crime.”

Schieffer couldn’t get past the notion that concerns about liberal indoctrination on South Dakota’s campuses were derived more from anecdote than hard evidence. He chafed, too, at the right-leaning national studies that lawmakers cited to bolster their arguments. The studies, Schieffer wrote, “do not represent the kind of intellectual diversity we all claim to seek.”

(Of particular interest to the lawmakers was an article titled “Homogenous: The Political Affiliations of Elite Liberal Arts College Faculty,” which was published in 2018 by the National Association of Scholars, a group that promotes traditional courses in Western civilization.)

“It is unscientific in the extreme,” Schieffer wrote, “to use those studies to definitively claim a problem in South Dakota, much less prescribe a solution.”

Two months after his letter, Hawaiian Day happened — and a solution arrived. The intellectual-diversity bill, which had appeared dead in the legislature, was resurrected.

Kristi L. Noem, South Dakota’s Republican governor, signed into law House Bill 1087 on March 20, 2019.

The American Council of Trustees and Alumni, a group that has long been critical of political correctness on college campuses, applauded the new law. The council, which had advised South Dakota lawmakers on the legislation, released a statement that trumpeted “intellectual diversity” as “indispensable for human flourishing.”

The bill requires universities to annually report actions they have taken to promote intellectual diversity, and to report any actions that may have impeded free speech.

The law was considerably less onerous than what had initially been proposed. Slimmed down from eight pages to three, the bill was stripped of requirements that students must score 85 percent or better on a civics test in order to graduate. Gone too was a mandate that students complete three credit hours of U.S. history and U.S. government.

Unlike the previous version, the bill no longer required universities to report “any investigation” into students or disciplinary actions based on speech-related incidents. Language requiring that a university’s annual report be visible on “the website’s navigation bar” and “searchable by the use of keywords and phrases” was stricken, too.

What ultimately became law was a compromise the university could live with, but one it very likely would not have had to make had it not been for Hawaiian Day.

“This was USD snatching defeat from the jaws of victory on that bill,” said Patrick D. Powers, whose South Dakota War College blog helped to set the controversy in motion. “It was dead on the floor.”

Like many free-speech bills that are aimed at higher education in states throughout the nation, South Dakota’s borrows language from the American Legislative Exchange Council, or ALEC, a network of legislators and corporations that promotes conservative causes.

As public skepticism about higher education grows, and people view colleges through an increasingly partisan lens, lawmakers appear ever more emboldened to wage political warfare with state universities. In 2015, Wisconsin removed tenure protections from state law. The following year, the Tennessee legislature defunded diversity programs at the state’s flagship campus in Knoxville. Eighteen states have passed laws related to free speech on college campuses, according to the Foundation for Individual Rights in Education.

As a low-population state that is, for the most part, homogeneously conservative, South Dakota can be a promising place for model legislation to take root.

“It’s really easy in South Dakota for outsiders to bring in ideas, to test ideas, because you can get a lot of free, inexpensive media coverage,” says Wink, the regent. “Suddenly, it will be an issue. So much of this was brought to us by people from out of state.”

After hammering the regents for months, South Dakota’s conservative lawmakers got two things they wanted most out of the state’s universities: An acknowledgement that “intellectual diversity” is mission critical, and a reporting requirement on free speech.

But they were just getting started.

At least two bills in the legislature this session tap into hot-button political issues on campuses. On Thursday, Governor Noem signed a law banning collective bargaining at public universities. Another bill, which was effectively killed in the House this session, would have removed all of the university’s current regents and allowed the governor to appoint their replacements.

Dwight (Bill) W. Adamson, a retired associate professor of economics at South Dakota State, said the bill represents one more way in which the Legislature seeks to “control the Board of Regents.”

“The Legislature is trying to get a set of friendly regents in there,” said Adamson, a former president of the Council of Higher Education, the union that represents the university system’s faculty members. “This is definitely a signal. They’re saying, ‘You are acting somewhat independently, and we want you to basically follow our agenda.’ That’s the clear signal that they’re sending to the Board of Regents.”

This week, there were signs of more volatility on the board. Paul B. Beran, who has led the South Dakota system as chief executive since 2018, announced on Monday that he would step down when his contract ends in June.

“The board has informed me they want to go a different direction in leadership,” he said in statement, “and I fully understand their right to exercise that change.”

Beran did not respond to a request for comment on Tuesday.

Schieffer, the board’s president, said that the details of the board’s decision were confidential personnel matters. But he assured that the leadership change is unrelated to recent debates with lawmakers or “outside influence of any kind.”

Outside influence, however, remains a concern for some professors at South Dakota.

To Adamson, the legislative moves of recent years in South Dakota are part of a comprehensive and calculated effort. Conservative lawmakers, he said, want the state’s social, political, and higher education agendas to be “molded in their view of the world.”

That’s not what Rep. Tina L. Mulally, who sponsored the bill to reconstitute the regents, says she’s up to. She’s worried, she says, about program duplication, declining enrollment, and rising tuition.

“I don’t believe the Board of Regents has been responsive to the taxpayers for decades,” says Mulally, a Republican. “I tried to have conversations with them when I became a representative, and I got the impression that they didn’t want to talk to me. So I said: Let me see if I can get your attention.”

Mulally’s bill would restore a provision in South Dakota law that prohibits the appointment of any regent who lives in the same county as a university, which she says would reduce conflicts of interest. So, too, would it eliminate language in current law that ensures no more than two-thirds of the regents are members of the same political party.

During a recent telephone interview, Mulally was attending the Conservative Political Action Conference to receive a national award for her conservative voting record. After the interview, she answered a few questions via email, including one about why she wanted to eliminate limits on single-party domination of the university’s Board of Regents.

“I truly believe that politics should not be a factor in choosing a regent,” Mulally wrote. “What does a member’s political opinion have to do with overseeing higher education?”