Media Contact

Janna Farley,

August 17, 2022

Over the last year, there has been an increase of state-based efforts to restrict the teaching of so-called “divisive concepts.” This nationwide push is part of a coordinated effort to limit teacher and student rights, free speech and take away the ability to discuss racial justice issues in classrooms.

It’s happening in South Dakota, too.

The South Dakota Board of Education Standards could adopt a new administrative rule this month banning the use of “inherently divisive concepts” in academic content standards. The ACLU of South Dakota opposes this administrative rule.

“Education is a tool of empowerment put to its highest use when teachers and students are given the full scope of their Constitutional rights to engage in comprehensive, meaningful, and sometimes difficult conversations,” said Jett Jonelis, ACLU of South Dakota advocacy manager. “The proposed rule is vague and open to subjective interpretations that will chill speech and robust discussion in classrooms, it restricts the First Amendment rights of educators and students alike, and will harm all South Dakota students – especially students of color.”

Although the rule itself claims to prohibit the advancement of ideas in violation of the Civil Rights Act of 1964, the proposed divisive concepts language may actually violate the Civil Rights Act of 1964. The rule will likely have a discriminatory effect on Indigenous students who have federally recognized unique culturally related educational needs that the state is obligated to meet under the Every Student Succeeds Act and other regulations. The Civil Rights Act of 1964 does not necessarily require intent to discriminate against Indigenous students, LGBTQ students or students of color to bring a successful claim against the South Dakota Department of Education.

Adopting these rules is part of an executive order Gov. Kristi Noem issued in April. Noem issued the executive order after House Bill 1337, legislation that was introduced on the governor’s behalf and would’ve censored classroom discussion in South Dakota public schools, was shot down by the Senate Education Committee.

“The ability to discuss and debate ideas, even those that some find uncomfortable, is a crucial part of our democracy,” Jonelis said. “Despite claims that ‘political indoctrination has no place in our classrooms,’ the proposed rule only serves to further politicize education in South Dakota. It is clear that Noem’s executive order was meant to circumvent the legislative process and adopting this rule risks setting dangerous precedent that the governor can enact rejected legislation through extreme executive action.”

A copy of the ACLU’s letter to the Board of Education Standards is below.

About the ACLU of South Dakota

The American Civil Liberties Union of South Dakota is a non-partisan, nonprofit organization dedicated to the preservation and enhancement of civil liberties and civil rights. The ACLU of South Dakota is part of a three-state chapter that also includes North Dakota and Wyoming. The team in South Dakota is supported by staff in those states.

The ACLU believes freedoms of press, speech, assembly, and religion, and the rights to due process, equal protection and privacy, are fundamental to a free people.  In addition, the ACLU seeks to advance constitutional protections for groups traditionally denied their rights, including people of color, women, and the LGBTQ+ and Two Spirit communities. The ACLU of South Dakota carries out its work through selective litigation, lobbying at the state and local level, and through public education and awareness of what the Bill of Rights means for the people of South Dakota.