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January 3, 2019 Senator Jim Stalzer Sent via email to [email protected] Senator Kris Langer Sent via email to [email protected] Representative Sue Peterson Sent via email to [email protected] Representative Lee Qualm Sent via email to [email protected] RE: SD Board of Regents policies on free speech and intellectual diversity Greetings: I want to first say that I consider it a privilege to have been chosen to be the Executive Director & CEO for the Board of Regents. The nine regents for whom I work have demonstrated to me time and again over the short four months I have held this position that they are incredibly dedicated to making higher education in South Dakota the best it can be. Furthermore, they give serious consideration to the thoughts and concerns of our Legislature. Following last year’s debates on campus free speech, the Board held detailed hearings that included testimony from many groups and individuals about free speech, which recently culminated in a rewritten set of policies that guide and support open and respectful debate and discussion from all viewpoints. We think this has been a good example of collaboration with the legislature, which we welcome. The second point is that I want to make sure that you understand the context of the answers which you are about to read. The core of your questions are about (1) how the BOR system supports intellectual diversity, (2) how the regental universities respond to accrediting bodies, specifically the Higher Learning Commission (HLC), (3) what purpose and reason campus diversity offices serve and what they cost, (4) whether the faculty viewpoints at the regental universities reflect the viewpoints of the citizenry of South Dakota, (5) what are the regental university hiring practices and how they affect who is hired, and (6) why more history and government should be required and more Western Civilization themed or conservative political thought majors or minors should be available. Given the nature of your questions and the specificity of the information requested or the specific position of the BOR on certain points, as the BOR Executive Director I can only tell you to the best of my ability what is happening currently and/or how what you are asking is guided by established BOR policies, state statutes, and federal law. The responses are not meant to be “litigious” or do anything but communicate information that you requested in the most straightforward and truthful way possible without “spin” of any kind. I’m sorry you feel some of the many questions asked were not answered. It would be presumptive of the BOR Executive Director and/or the BOR staff to do anything but explain and answer questions in the context of what is currently taking place on our campuses or as defined by policy and board directives or within our independent knowledge. In that regard, President Schieffer will be sending a separate reply to parts of your letter more appropriate addressed by a Board member. All this said, the third point I want to make is that I fully recognize that your questions raise many issues that can lead to healthy dialogue and change about how public higher education in South Dakota can reflect the broadest swath of beliefs and perspectives and actively support debate, argument, dissent, and affirmation of many differences of opinion and beliefs. The questions also promote discussions and opportunity regarding how to more permanently create opportunities for growing intellectual diversity. Finally, I hope that all of us can have some face to face meetings in the near future in which we explore your concerns and hopes for South Dakota higher education. I recognize that your questions raise substantial opportunities for doing many things differently and better at South Dakota regental universities. I look forward to having in-depth and substantive conversations this legislative session with all of you and I will work hard to be resource and a supporter for South Dakota higher education. As requested, the letters from individual Legislators dated July 2nd, October 5th and December 10th and the accompanying BOR responses have been posted to our website. A link to the correspondence can be found on our homepage. The information below addresses your correspondence dated December 10, 2018, regarding the South Dakota Board of Regents’ (BOR) policies on free speech and intellectual diversity. Each of your twenty (20) points are restated below, and under each, the response provided by Board staff, and where appropriate, individual universities. 1. Thank you for your strong leadership in addressing the campus speech policies at South Dakota universities and for getting this issue on the agenda. We obviously support all efforts to promote free speech. We applaud, in particular, your decision to make the promotion of intellectual diversity the official policy of the BOR. Much of this letter relates to how we take specific steps to implement the policy of promoting intellectual diversity. No response necessary. 2. In your response to our October letter you have defined “intellectual diversity” in a “comprehensive and multidimensional manner,” i.e., in a manner that is completely different than the meaning of intellectual diversity that is common to a broad discourse about higher education reform that is currently ongoing in policy circles. We assume this must be a mistake on the part of the BOR and not a case of stark bad faith, so we again, for the third time, must revisit this question. For the sake of clarity and in keeping with the very common and well-known discussion about intellectual diversity at the present time, we define intellectual diversity as the presence for a wide variety of ideological and political opinions on campus and not simply the domination of one ideological bloc. This should have been very clear from the definition included in the free speech legislation dicussed last legislative session. We again ask: can the BOR provide direct, substantive, and compelling evidence of the existence of intellectual diversity on its campuses? For the sake of simplicity, the BOR can limit its response to humanities and social sciences. If the BOR cannot provide direct, substantive, and compelling evidence of the existence of intellectual diversity on its campuses then the BOR should state that clearly and explain why. When answering this question, keep in mind that invoking existence of faculty “credentials” is not evidence of the existence of intellectual diversity, as the BOR asserted in response to question 4 in our October letter. The quote referenced above from BOR’s prior response was not intended as a definition of intellectual diversity, but rather as part of an explanation as to how the BOR and its institutions understand and apply intellectual diversity. To my understanding of “direct, substantive, and compelling” evidence, I am not sure anyone is in a position to either prove or disprove the existence of intellectual diversity on South Dakota campuses, and we make no pretense in that regard. President Schieffer has pursued this matter individually, and is addressing it more fully in his letter with what we hope are some ways we can work together on this. To the extent the issue of intellectual diversity is viewed in more narrow political affiliation/opinion terms, as some have suggested, it would be inappropriate to address so narrowly. As stated in our previous response, it is in violation of South Dakota Law for the BOR to employ or dismiss any person based on their political opinions held. South Dakota Codified Law 13-49-14 states, “The Board of Regents may employ or dismiss all officers, instructors, and employees of such institutions, necessary to the proper management thereof…However, no person may be employed or dismissed by reason of any sectarian or political opinions held.” 3. With the proper definition of intellectual diversity in mind (see above), please explain in detail how, going forward, the BOR will aggressively pursue the promotion of intellectual diversity on South Dakota campuses. Please give detailed and specific examples. As referenced above, if political affiliation is determinative of intellectual diversity, the BOR cannot address the issue without running afoul of SDCL 13-49-14. Additionally, and specific to the University of South Dakota, SDCL 13-57-4 prohibits instruction that is partisan in politics from being offered at any department of the university. The foregoing is not intended to nor does it need to duck the issue, but rather to emphasize the fact that this topic has legal limitations that must be respected and addressed carefully. The Board has made very clear that it wishes to promote intellectual diversity. We have an important job ahead of us in determining how best to achieve that, which I know will be addressed in President Schieffer’s letter in detail. From a staff perspective, we are researching the options and look forward to meeting with you or your designees and many others to get the widest range of possibilities for how to achieve some consensus on how to do that, and then from there, what we all can do to appropriately address the issue(s) for the betterment of South Dakota. In fairness, the BOR’s intellectual diversity policy is both fairly unique and new. There are ways to promote and encourage diverse thought viewpoints on our campuses, setting aside political affiliation specifically. BOR may have opportunities to explore seminars, lecture series, courses, programs or fellow options that would further advance this effort on our campuses without running afoul of pertinent legal authority. As I’m sure you are aware, there are a number of approaches that have been taken across the country in recent years to address this very topic.

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