Divisive Concept Guidance

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Divisive Concept Guidance

House Bill 1012 (An Act to protect students and employees at institutions of higher education from divisive concepts) was passed by the Legislature, signed by the Governor, and went into effect July 1, 2022, and is now codified in SDCL 13-1-67 to 13-1-71. The intent of this page is to provide guidance and clarification around what this law does and doesn't impact. Additionally, the Statement adopted by the Board of Regents on August 5, 2021, provides its position and expectations on various matters related to the content of HB 1012.

Frequently Asked Questions

Does HB 1012 impact instruction or course curriculum?
What “divisive concepts” are restricted in HB 1012?
What is prohibited by HB 1012?
Can faculty determine the content of their teaching?
What rights do students have in the classroom?

What implications does HB 1012 have on the free speech rights of individuals?

Does HB 1012 impact instruction or course curriculum?

HB 1012 does not pertain to the content or conduct of any course of academic instruction or unit of instruction, nor does it infringe upon academic freedom.
The appropriateness of the content or conduct of courses of academic instruction are governed by the Board of Regents (the “BOR” or “Board”) and Institutional Policy, to include BOR Policy 1:11 – Academic Freedom and Responsibility.
BOR’s institutions will offer curriculum based upon widely-held and accepted knowledge and thought. BOR’s institutions will respect academic freedom, and will expect faculty to exercise that freedom in a way that respects this expectation. As our students expand their understanding in a field of study, we encourage that students be exposed to a variety of viewpoints, ideas, and theories, so that they can be debated and critiqued. This could include discredited or controversial ideas, because understanding the weaknesses of failed ideas is as important as understanding the strengths of successful ones. Students must be prepared to identify the good and bad in new or controversial areas of thought.
Students must be free to take reasoned exception to the data or views offered in any course of study and to reserve judgment about matters of opinion, but they are responsible for learning the content of any course of study for which they are enrolled.

What “divisive concepts” are restricted in HB 1012?

That any race, color, religion, sex, ethnicity, or national origin is inherently superior or inferior;
That individuals should be discriminated against or adversely treated because of their race, color, religion, sex, ethnicity, or national origin;
That an individual’s moral character is inherently determined by their race, color, religion, sex, ethnicity, or national origin;
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;
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;
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
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.

What is prohibited by HB 1012?

The BOR, or any institution under its control, may not direct or compel a student to personally affirm, adopt, or adhere to any of the divisive concepts.

This restriction is consistent with the First Amendment protection(s) against compelled speech in matters of politics, nationalism, religion, or opinion.
This does not restrict or prohibit the discussion or exploration of divisive concepts when relevant to a given course and course objectives, but students cannot be compelled or directed to personally affirm, adopt, or adhere to any of the divisive concepts.
This restriction applies to any verbal, physical, or electronic act required of a student that results in their personal affirmation, adoption, or adherence to any divisive concepts.

The BOR, or any institutions under its control, may not require their students or employees to attend or participate in mandatory training or orientation that teaches, advocates, acts upon, or promotes divisive concepts.

This restriction applies only to required or mandatory training or orientation outside of academic instruction (i.e., not for credit). For avoidance of doubt, if there are consequences for an employee or student not attending a training or orientation, it is considered mandatory or required.
No such training or orientation may include, advance, or promote any of the notions identified as divisive concepts. In the event a question is asked by a participant related to a divisive concept, the individual conducting the training or orientation is not restricted from responding to the question.
This restriction is consistent with the BOR’s rejection of the idea that any individual person is responsible for the action taken by other people, and the BOR, or any of its institutions, will not promote any suggestion that one group of people is inherently superior or inferior to another group, or is inherently oppressive or immoral.
This restriction does not limit or otherwise impede the ability to explore, debate, critique or discuss divisive concepts in lectures or seminars on campus in which attendance or participation is voluntary.

The BOR, or any institution under its control, may not condition enrollment or attendance in a class, training, or orientation on the basis of race or color.

The BOR and its institutions do not (and will not) discriminate on the basis of race or color, or for that matter, ethnicity, religion, disability, veteran status, economic status, or sexual preference. We treat each person as an individual, not as a member of group, and we will offer services and supports for each person’s individual situation.

Can faculty determine the content of their teaching?

Faculty are guaranteed the right of academic freedom in their teaching, scholarly or creative work, or research pursuits, subject only to the accepted standards of professional responsibility, including, but not limited to, those set forth in BOR Policy 1:11.
Faculty are entitled to freedom in the classroom in the discussion of their subject and in the presentation of various scholarly views, including controversial matter, which is relevant to a given course and course objectives.
Faculty may not use their classroom as a platform to advance any political, sectarian, or ideological agenda(s).
While controversy is at the heart of free academic inquiry, faculty should avoid persistently including material that does not relate to a given course or course objectives, or that otherwise detracts from the underlying course objectives.
In the many instances where there are differing and even controversial scholarly views, divergent viewpoints and materials should be presented, studied, analyzed, and debated to challenge and support students in developing their ability to think critically, form opinions, and draw conclusions.

What rights do students have in the classroom?

Students must be free to take reasoned exception to the data or views offered in any course of study and to reserve judgment about matters of opinion, but they are responsible for learning the content of any course of study for which they are enrolled.
Student performance shall be evaluated solely on an academic basis, not on opinions or conduct in matters unrelated to academic standards.
Students may appeal any academic evaluation which they believe to be tainted by prejudice or capricious consideration of student opinions or conduct unrelated to academic standards in accordance with BOR Policy 2:9.
Each institution also maintains a method by which students can submit complaints regarding allegations of instruction conducted in a manner inconsistent with BOR Policy 1:11.

What implications does HB 1012 have on the free speech rights of individuals?

Nothing in HB 1012 may be construed to inhibit or violate the First Amendment rights of any student or employee.
The South Dakota Legislature, by way of SDCL 13-53-50, has stated neither the BOR nor any of its institutions may attempt to shield individuals from constitutionally protected speech, including ideas and opinions they find offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrong-headed.
The Board’s commitment to the principles of expression protected by the First Amendment is solidified in BOR Policy 1:32.

Controversial speech and robust debate are expected and valued at our institutions. The BOR and its institutions have a responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it. While members of the institutional communities are free to criticize and contest the views expressed on campus, they may not obstruct or otherwise interfere with the conduct of the institutions or the freedom of others to express views they may reject or even loathe.
Faculty and staff can speak or write as private citizens on matters of public concern, free from institutional censorship or discipline, but in doing so, they should make every effort to indicate they are not speaking for the institution.

Student organizations, students, employees, and their guests continue to enjoy the protections and ability to use institutional facilities and grounds for expressive activity as prescribed in BOR Policy 6:13:1.

Divisive Concept Guidance

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Frequently Asked Questions

Divisive Concept Guidance