Noem Still Hiding “Divisive Concepts” Report—Whom Would Disclosure Harm?

Governor Kristi Noem is still hiding a report that she ought to be eager to share.

Back in April, the Governor ordered her Department of Education to prepare a report on any Department “policies, guidelines, websites, best practices, materials, programs, training, or content standards” that promote “inherently divisive concepts”—code for her party’s deliberate misrepresentation of critical race theory and any other non-Republican ideas. The Governor ordered that report be on her desk by July 1. When reporter Bob Mercer asked for a copy of that report on July 7, the Governor’s office balked, saying they needed ten more business days to review the law and see if the report should be treated as a public document.

Ten days have come and gone, and all the Governor’s office has given Mercer and the public is more delay:

The governor’s legal counsel wants even more time to decide whether to publicly release a report on whether “inherently divisive concepts” such as Critical Race Theory were found in what the South Dakota Department of Education provides to K-12 schools across the state.

Katie Hruska in a letter Thursday told KELOLAND News that Governor Kristi Noem’s office now “estimates fifteen (15) additional business days is required” [Bob Mercer, “Noem’s Lawyer: Need 15 More Days on CRT Report,” KELO-TV, 2022.08.04].

As I argued when Mercer first alerted us to the Governor’s resistance to releasing this report, this delay doesn’t make sense. If “divisive concepts” are a real threat to South Dakota’s education system and cultural integrity, one would think the Governor would want to spotlight instances of those “divisive concepts” so we can spot them, fight them, and kill them. If Noem’s own Education officials combed through their department and didn’t find a single instance of “divisive concepts” or other leftism creeping to classrooms, that might lead critics to ding Noem as the girl who cried wolf!, but given her own proclivity for rewriting history, Team Noem could easily spin a negative report as a sign of success: See? My focus on this issue has already led to getting rid of all divisive concepts from our education system! South Dakota offers the best schools in America, free of the leftist indoctrination that’s hurting children in the sad blue Biden states!

But let’s look past any political purposes we might impute to the Governor and ask the central question her lawyers had better be asking: on what legitimate grounds can the state keep a document secret?

SDCL 1-27-1.5 makes numerous exceptions to our open records law. Those exceptions envision various harms that may outweigh the benefit of disclosing a document to the public:

1. Invasion of personal or medical privacy that could embarrass individuals or subject them to discrimination, retaliation, identify theft, or other harms.
2. Breach of legal or professional privilege that could weaken professional relationships and reputations.
3. Disclosure of trade secrets that could hurt businesses.
4. Disclosure of negotiation or contract details that could foul a bidding process or cost the state money.
5. Disclosure of security information that could put people or property at risk.
6. Disclosure of investigative information that could compromise efforts to prosecute criminals or protect crime victims, informants, or law enforcement.

Each of these possible harms (and others that my eager readers can surely think up) is debatable. Whatever competing interest the state may cite for keeping records secret, we should presume, as South Dakota law does, that a government record is public unless the government can make the case that disclosing the record will do some real harm—not just political embarrassment—that outweighs the public interest in seeing that record.

So what harm could a report on “divisive concepts” in the Department of Education do?

There is no personal or medical privacy involved. The “policies, guidelines, websites, best practices, materials, programs, training, or content standards” reviewed all belong to the Department of Education, not individuals, and are themselves all public, widely disseminated to schools, teachers, trainers, vendors, parents, and students. A review by the Department of its own public policies, guidelines, and what-not does not invoke any personal privacy.

There is no legal or professional privilege at stake. The Governor’s order did not dispatch lawyers to prepare legal briefs for litigation.

There are no trade secrets or contract negotiations at risk—the Governor did not order the Department to review any conduct by private firms. The order is limited to trainings, materials, etc. provided by the Department itself.

The order doesn’t mention any security-related issues. The “divisive concepts” Noem outlined in her order and directed her Department of Education to look for have nothing to do with the school gunslinger program, lockdown drills, or armed shooter simulations (although maybe they should, because the psychological trauma and real physical peril such policies may create could arouse some division).

The Department’s review of its policies and programs comes nowhere near any criminal investigation. The state can’t prosecute anybody in the Department for mentioning systematic racism or white privilege (can it?), so there can’t be anything in this report that imperil any criminal investigation or investigator or potential victim. Again, alerting teachers, students, and others to instances of “divisive concepts” would, in the Governor’s thinking, help those targets steel themselves against being victimized by those maleficent leftist propagandists.

Naturally, I’m biased toward openness. (So was the Governor, when she campaigned on fighting government secrecy as one of her Four Pillars of good government in 2018.) I want to see this “divisive concepts” report so we can finally see the concrete examples of the “divisive concepts” that Noem says plague South Dakota’s education system. I may thus need more than a morning blog post to think up scenarios in which the release of this very publicly ordered report would do any harm, not to mention harm that would outweigh the public’s interest in knowing what if any “divisive concepts” its taxpayer dollars may be supporting in the Department of Education.

But Noem’s lawyers have been working for a month to cook up a legal excuse not to release this report, and they still need more time to make their case stick.