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South Dakota governor Kristi Noem signed her anti–critical race theory bill into law this week.

Twitter/Kristi Noem

Add South Dakota to the list of states that have passed anti–critical race theory laws impacting higher education.

“No student or teacher should have to endorse critical race theory in order to attend, graduate from, or teach at our public universities,” Governor Kristi Noem, a Republican and the legislation’s chief architect, said in a statement upon signing it into law this week. “College should remain a place where freedom of thought and expression are encouraged, not stifled by political agendas.”

HB 1012, as the legislation is known, prohibits the South Dakota Boards of Regents and of Technical Education, or any institution under their control, from compelling students to “personally affirm, adopt, or adhere to divisive concepts.” The new law also prohibits institutions from requiring students or employees to participate in any training that “teaches, advocates, acts upon or promotes divisive concepts.”

The law defines divisive concepts as follows:

  1. That any race, color, religion, sex, ethnicity or national origin is inherently superior or inferior;
  2. That individuals should be discriminated against or adversely treated because of their race, color, religion, sex, ethnicity or national origin;
  3. That an individual’s moral character is inherently determined by their race, color, religion, sex, ethnicity or national origin;
  4. That an individual, by virtue of their race, color, religion, sex, ethnicity or national origin, is inherently racist, sexist or oppressive, whether consciously or subconsciously;
  5. That individuals, by virtue of race, color, religion, sex, ethnicity or national origin, are inherently responsible for actions committed in the past by other members of the same race, color, religion, sex, ethnicity or national origin;
  6. An individual 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; or
  7. Meritocracy or traits such as a strong work ethic are racist or sexist or were created by members of a particular race or sex to oppress members of another race or sex.

Idaho, Iowa and Oklahoma enacted anti–divisive concepts laws for higher education last year, when most state legislatures considering or passing such bills were focused on K-12 education. This year, however, some 20 states are considering bills targeting colleges and universities.

Nathan D. Lukkes, general counsel for the South Dakota Board of Regents, said that the board has supported the legislation because it includes a “carve out” for academic instruction. This is language in the bill (now law) stating that nothing therein “Pertains to the content or conduct of any course of academic instruction or unit of study at an institution of higher education.” Similarly, the bill says nothing in it “May be construed to inhibit or violate the First Amendment rights of any student or employee, or to undermine the duty of an institution under the control of the Board of Regents or the Board of Technical Education to protect, to the greatest degree, academic freedom, intellectual diversity and free expression.”

Beyond CRT

Relatively few state bills mention CRT by name, but it’s widely understood that this theory—or what experts say is a seriously distorted version of the theory—is what such legislation seeks to restrict. Indeed, CRT has become such a politicized issue that it’s already a significant topic in this week’s hearing for Judge Ketanji Brown Jackson’s historic nomination to the U.S. Supreme Court.

In any case, many bills echo a now-retracted Trump administration executive order prohibiting the teaching of divisive concepts in training for federal contractors.

While the South Dakota board supports the bill, critics of similarly written legislation elsewhere say they’re so vaguely written as to threaten free speech and academic freedom anyway.

In Wisconsin, for instance, Rebecca Blank, chancellor of the University of Wisconsin’s flagship campus at Madison, has asked Governor Tony Evers, a Democrat, to veto a bill passed by state lawmakers in both chambers prohibiting state colleges and universities from teaching anything that promotes “race or sex stereotyping.”

Resembling a model “academic transparency act” pushed by the conservative Goldwater Institute, the bill also would require colleges and universities to post all course syllabi, including updates to the syllabi, on their websites.

Violations of the legislation would result in the withholding of 10 percent of state aid from institutions. Students or employees who alleged a violation could sue for injunctive relief, plus attorney’s fees, if successful.

Blank said in a public statement, “As a university, our aim is to graduate well-rounded, critical thinkers; to teach our students not what to think but how to think. UW’s ability to attract and retain the best and brightest faculty, staff and students depends on being an environment where both academic freedom and freedom of speech are core values.”

SB 409, as the bill is known, “stands in opposition to those values and I strongly urge Governor Evers to veto,” she said. (For the same reason, Blank also asked Evers to reject a bill that would allow students to fulfill any general education course requirement in diversity or ethnic studies with a course on the U.S. Constitution.)

A Florida bill passed by state legislators and pending approval by Governor Ron DeSantis, a Republican, also includes a transparency mechanism. SB 7044 would require state colleges and universities to post “prominently” in the course registration system and online a searchable list of required and recommended textbooks and other instructional materials for at least 95 percent of all courses—at least 45 days ahead of a given term and for five additional years after. Core general education course descriptions would also have to include syllabus information, including “the course curriculum” and goals, objectives and student expectations.

Other controversial elements of SB 7044 include a new, comprehensive posttenure review process every five years for tenured professors. And in a massive switch-up for accreditation, the bill would require postsecondary institutions to seek a different accreditor for each accreditation cycles. It would also allow institutions “negatively impacted by retaliatory action” by accreditors to sue those accreditors. (The provision on accreditation come shortly after the state’s current accreditor, the Southern Association of Colleges and Schools Commission on Colleges, said it was looking into academic freedom concerns at the University of Florida.)

A separate Florida bill also pending approval by DeSantis, HB 7, prohibits a list of divisive concepts that is similar to South Dakota’s but says such concepts may be discussed in training or instruction in an “objective” manner, “without endorsement of the concepts.” For K-12 schools, the bill also specifies the ways in which various historical events or concepts may be taught; African American history, for instance, shall include “motivating stories of American history that demonstrate important life skills and the principles of individual freedom that enabled persons to prosper even in the most difficult circumstances.”

The Foundation for Individual Rights in Education, among other groups, has criticized HB 7—known by its supporters as the “Individual Freedom” or “Stop Woke” Act—as unconstitutional.

“One banned idea is the notion that morality is determined by race, but bans on ideas also include bans on critiquing ideas,” FIRE wrote in an analysis. “How can a student develop an understanding of why a concept is wrong if they’ve never engaged with the argument? Dogma does not create an informed citizenry. This ‘individual freedom’ bill prohibits teaching that diversity initiatives that advantage some races or sexes over others, such as affirmative action, are desirable. While there are plenty of arguments against that approach to diversity, HB 7 would ban defending affirmative action policies. This sort of viewpoint-based discrimination is flatly unconstitutional.”

Questions of Memory

Andrew Gothard, president of the United Faculty of Florida statewide faculty union, wrote in a separate critique of HB 7, SB 7044 and the legislative process thus far that “conservative lawmakers not only ignored the democratic process but also actively worked to undermine it, all for what? To push an agenda that higher-ed faculty cannot be trusted to do their jobs without threat of punishment.”

Gothard continued his Gainesville Sun op-ed: “These open attacks on democracy cannot be tolerated because they are the early warning signs of deeper systemic problems down the line—the early swells before a hurricane, the chest pressure that precedes a heart attack, the whistle of an oncoming train.”

Some scholars have compared bills seeking to reframe the teaching of U.S. history to European “memory laws” that force and enforce specific narratives about past events. Memory laws have been used to ban things such as Holocaust denial, but they’ve also been used in the service of nationalist agendas.

George Soroka, a lecturer in government at Harvard University who has written about memory laws, said this week that anti–divisive concepts bills aren’t necessarily memory laws (even if they share certain characteristics with memory laws), but that they’re potentially dangerous nonetheless.

Many of these new U.S. “content” laws “are written to be so broad as to be interpreted in a variety of politically expedient ways,” Soroka said, describing himself as something of a free speech “fundamentalist.” “The concepts that they cover have also been so blatantly politicized on both sides of the aisle. I don’t believe many of these laws are actually intended to protect students, but rather that they are here for partisan legislators to score political points—much as with prescriptive memory laws.”

Soroka raised additional concerns about interpretation, enforcement and unintended consequences.

“As with memory laws, it is all about who is doing the interpreting,” he said. “Degrees of offense, after all, are often in the eye of the beholder. I’m also concerned about how such legislation might impinge on educators’ freedoms in the classroom, as well as the fact that it might lead to self-censorship. When you don’t know exactly where the red lines are drawn, people err on the side of caution.”

Ultimately, he said, “Educators work best when both their left and right hands are politically unshackled.”

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