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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.


  1. Jake 2022-08-07 15:13

    I don’t see anything in a “study” of the what’s being taught our students in schools by teachers overseen by the state that could ever be considered to cause such lawyerly ‘delays’ of a study promised to the people! Not just a day or two, but over a month! Obviously, there is nothing there of substance and they are trying to hoodwink us.
    This woman is getting nervous it seems.

  2. larry kurtz 2022-08-07 15:26

    $20 says the US Department of Education has made it clear to the Noem campaign that whitewashing genocide just isn’t acceptable in the state where We the People have already expressed deep remorse for the slaughter at Wounded Knee.

  3. Arlo Blundt 2022-08-07 16:11

    Governor Noem’s CRT, “divisive concepts” policy is so half baked and filled with inconsistency that I’m rather certain no one in the Department of Ed. or on her staff can figure out what to do with it. Hillsdale College is riding to the rescue for a huge fee. It is mostly double talk, religious mumbo jumbo, like speaking in tongues, Hittite and Samarian, faith healing and the handling of snakes. While Governor Noem is a believer and cannot figure out why everyone doesn’t fall in line, her lack of intellectual candle power is glaring. She threw this bone to the radical right , now, she might just walk away. On to the next outrage.

  4. O 2022-08-07 20:12

    1. What curriculum did this “study” look at? Did it dig into individual school’s classrooms? Who reported that data for the report?
    2. Who exactly is reviewing the report now?

    I still say that jumping up and down, pointing to what is happening in schools (no matter how accurate historically), and screaming “decisive concepts” IS the divisiveness. I think we really all can get together to agree we have done some things REALLy wrong in the past as a country and that we should — and can do batter (and should and can make some amends for those wrongs as well). I’m willing to bet that if we could for a moment have THAT discussion out of the political arena, agreement — not divisiveness — would come quite quickly. Funny enough, that discussion — out of the political arena — Is the very purpose of public education: the institution the Right looks to inject their poisonous politics into.

  5. Ryan 2022-08-07 20:49

    haha told you all there was no report… they are hiding behind the lawyer but it’s certainly not Mrs. Hruska’s fault or plan; I’m sure she’s just the messenger. They will eventually have to put something down on paper for a “report.” I can’t wait to see how poorly written it is, knowing this administration haha

  6. DaveFN 2022-08-07 21:25

    It takes a true blunderbuss to publicly promise a report and not deliver.

  7. Donald Pay 2022-08-07 21:27

    There are a lot of divisive concepts being taught. Let’s consider that Noem’s bullcrap report is just going to be a rehash of what other states have already done. This divisive concept meme has been kicked around for a few years and other states have been just as dumbfounded by it. Consider New Hampshire in which the AG there put out some nonsense that didn’t find much of anything that couldn’t be taught. Still, teachers wanted to have things specifically spelled out, because their licenses to teach might be pulled if they taught something that was verboten.

    Similar situations are occurring in Iowa and Georgia. No one knows what can’t be taught. Obviously Nazi beliefs about race are clearly divisive, but teaching something about them is necessary to understand how the Nazis progressed from espousing Christian and German Nationalism to the rounding up Jews in ghettos and from there to genocide. Of course they also murdered gay folks, etc., etc.

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