Top Political Stories of 2019: #3 – Happy Hawaiian Day! The Board of Regents versus the Legislature.

Top Political Stories of 2019: #3 – Happy Hawaiian Day! The Board of Regents versus the Legislature.

An entity which has been present in South Dakota Law since the early days of South Dakota, the South Dakota Board of Regents (BOR) which governs the state’s Public University system has long been referred to as the state’s 4^th branch of government due to the panel’s structure and organization.

Only subject to term limits since 2018, Six year terms for members have meant that those who sit on the panel enjoy long tenures that sometimes outlast elected officials in government who might be at odds with things that are going on in our institutions of higher learning.  As a result, universities and the board of regents have always played a game of “survivor “with Governors and especially the Legislature. They play to outwit, outplay, & outlast.   Especially the outlast.

The BOR and University presidents have expanded their territory over the years and been able to resist change as legislators have to pivot from one item to the next, sometimes lacking the ability to devote sustained attention to forcing this massive higher educational system to heel, and accept that they are an entity under state government – and not one unto themselves.  2019 started with the Board of Regents already on the wrong side of the South Dakota Legislature on the issue of Free Speech on University campuses.

A previous attempt in 2018 to pass two bills guaranteeing free speech had come about because of reported problems with speech on campus, with USD specifically cited as having designated free speech zones.  Under the glare of the legislative eye,  USD danced a little sidestep, declaring victory as “under the new policy, the entire campus is open to free speech.”

The Board of Regents responded to legislators push, and staved off the law they feared.  But, legislators noted, they weren’t going to let this one go.  Regents on their part promised to take a “more aggressive” approach to free speech, saying the bills were unnecessary as they prepared to slow walk the issue.

But a funny thing happened. Lee Qualm, the House Majority Leader decided he wasn’t going to let that happen, and sent the regents a letter with very specific questions (which they responded to). And Regents drafted a policy. State Representative Sue Peterson and Senator Jim Stalzer also mounted a campaign to keep up the pressure, keying in on intellectual diversity. Regents responded that they would write policies, telling the legislators:

The presidents of our institutions are charged with providing academic leadership and promoting academic excellence at their institutions and formulating educational policies and academic standards consistent with BOR policy. It is through BOR policy and the BOR’s employment and oversight of the presidents of our institutions that it ensures and promotes a commitment to intellectual diversity on our campuses.

Read that here.

And that brings us to 2019. Where Regents slow walking the legislature didn’t work anymore.

Right out of the gate, an Intellectual Diversity bill was introduced and moved forward in legislature under the sponsorship of Speaker of the House Haugaard and House Majority Leader Lee Qualm as co-sponsors of the bill, with Senate Majority Leader Kris Langer and Senate President Pro Tempore Brock Greenfield also adding their names to the list.

While it moved through the House, the bill seemed somewhat stalled by mid-February, and some were thinking it dead.  In fact, it was dead, moved to the 41^st day in Senate State Affairs by a vote of 6-3. But then the biggest gift that Regents could provide its detractors was given.  Hawaiian Day at USD Law School.

A silly let-off-steam event at USD Law School called Hawaiian Day was hijacked by the Schools’ PC overlords, and as related from the Argus Leader after SDWC ran the story:

A student organization at the University of South Dakota has been told that holding a “Hawaiian Day” social event violates the school’s policy on inclusiveness.

As a result, the Student Bar Association of the USD School of Law changed the name of the event to “Beach Day.” In a Facebook message to its members, the group said: “We greatly apologize to those we offended; it was unintentional.”

In the same message announcing the change from Hawaiian Day to Beach Day, members were told that the dress code was the same – floral shirts – and that leis, the traditional flower garlands that are often given to tourists in Hawaii, would also be handed out. But in a second message that went out to members on Wednesday, bar members were told that leis had been nixed from the event.

Read that here.

Suddenly, USD was held up to National ridicule, including a Hawaiian state legislator who mocked the forces of political correctness at the University of South Dakota.

And a curious thing happened. That bill that was killed on a 7-2 vote and sent to the legislative morgue of the 41^st legislative day now had a heartbeat.  And not just a heartbeat – it had momentum!   In fact, so much so that the Board of Regents could tell the winds had shifted, and now found themselves at the table to help “fix” this once dead measure.

Within days HB 1087 was revived, reconsidered, amended and sent to the Senate Floor (on a 6-3 vote) – where it passed on a vote of 26 to 7. The newly amended bill also rocketed through the House for concurrence in Amendments on a 51-12 vote, with a very supportive Governor signing it within a week of it being delivered.

It was a hard won fight for free speech advocates. But that wasn’t quite the end of it.  Because the State Legislature was still wanting to chat with the Board of Regents.

Government Operations and Audit Committee or GOAC was now on deck for the interim period of time between legislative sessions. And they wanted to continue the conversation with the Board of Regents, and invited them to have a chat about Hawaiian Day, and a previously unannounced plan to replace the University Center in Sioux Falls with a new college under the University of South Dakota.

USD attempted to blame their Hawaiian Day debacle on the conservative rabble rousers at Dakotawarcollege.com. In talking with legislators, they didn’t really put much credence in USD’s internal investigation on Hawaiian Day.  And it really didn’t help that they created a new College at USD without bothering to mention it.

That new college stuck in GOAC’s craw a bit, and they invited Regents back to discuss their compliance with SDCL 13-51-1.3, the law that designated the “Sioux Falls site for instructional, research, and service programs.”

And the headaches of the Regental institutions didn’t end there.

As reported on the Campus Reform website, USD President Sheila Gestring told an assembled group in a September Forum that that Democrat state Sen. Susan Wismer’s criticism of a letter by GOP lawmakers suggesting free speech and intellectual diversity policy changes was “brilliant.”  To which it was responded to publicly by Senator Stalzer who noted ““It is becoming obvious that USD has a culture that opposes free speech and intellectual diversity. [T]hat needs to change and the President appears to support that culture,” (State Senator) Stalzer concluded.”

Oops.

This and other actions earned the Board of Regents a return trip to the Government Operations and Audit Committee, where in October, GOAC decided they wanted more information on the implementation of House Bill 1087, free speech and intellectual diversity on university campuses from the Board.  GOAC expressly noted to Regents “We have been informed by various parties that the BOR is not taking the implementation of HB1087 seriously and that the BOR is instructing campuses to ignore the requirements of HB1087 and/or to “slow walk” any reforms.”

So far, the draft report for the interim 2019 period for GOAC doesn’t go very far in depth on upcoming legislation being considered by individual legislators regarding the Board of Regents, but with concerns over slow walking reforms, and allegations of USD containing “a culture that opposes free speech and intellectual diversity “ it would not be surprising if further legislation regarding free speech and intellectual diversity don’t come up. In fact, I would almost expect it.

Happy 2020!