When Governor Kristi Noem announced to small gathering in Mobridge yesterday that she planned to issue an executive order to ban critical race theory in K-12 schools, she lied:
I brought two bills this Legislative Session that banned critical race theory from being taught in our classrooms in our K-12 schools an another one that banned it in our universities. The Legislature supported and passed and I signed into law the university one. So now in South Dakota going forward critical race theory cannot be taught in our universities. They killed the K-12 one. I will be signing an executive order to make sure that critical race theory is not taught to our kids in our public school systems, too [Gov. Kristi Noem, town hall meeting in Mobridge, transcribed from audio, in Jody Heemstra, “Noem to Sign Executive Order Today Banning Critical Race Theory from Being Taught in K-12 Public Schools,” DRG News, 2022.04.05].
- Noem brought no bills that banned critical race theory this Legislative Session. House Bill 1012, in its original form, mentioned “critical race theory” in its title but said nothing about critical race theory in its substantive text. House Bill 1337 never mentioned “critical race theory” or its basic tenets. Both bills targeted “divisive concepts“, but the definition of that vague concept does not include critical race theory.
- Noem never proposed a bill on this subject focused on universities. Her original HB 1012 applied to all schools—elementary, secondary, and post-secondary. The House Education Committee narrowed the bill to focus only on post-secondary schools. As passed, it deals with Regental universities and the state’s technical colleges.
- As amended, HB 1012, “the university one”, does not stop university professors from teaching critical race theory. Section 5 of HB 1012 specifically exempts “the content or conduct of any course of academic instruction or unit of study at an institution of higher education under the control of the Board of Regents or the Board of Technical Education….” Our universities aren’t teaching much critical race theory, but under Section 5 of HB 1012, they remain free to do so.
- The order Noem issued today, Executive Order 2022-02, does not stop any South Dakota K-12 teacher from teaching critical race theory. Of course, K-12 teachers are highly unlikely to be teaching a complicated, graduate-level legal theory, but if they want to, EO 2022-02 does not stop them. Noem gives the Department of Education six dubious directions, but, perhaps recognizing that she has no legal authority to dictate classroom content to local teachers and school boards, the Governor doesn’t mandate or restrain any action by teachers or local school boards. Noem’s order does not and can not “make sure that critical race theory” or anything else “is not taught to our kids in our public school systems.”
But hey, when all you need is headlines and campaign donations, who needs fact or effective policy?