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DOE Canceled August Rules Hearing Because Noem’s “Divisive Concepts” Edict Illegal

Last summer, the Department of Education strangely and without explanation canceled a hearing on rule changes proposed to root out “divisive concepts” from the Department’s documents and operations. Now, after an arduous open-records battle, Bob Mercer gets the secret August letter that explains why that hearing never happened—the Noem Administration was proposing an illegal overreach of executive power:

On Tuesday, the reason for that retreat became clear. [Legislative Research Council code counsel John] McCullough stated in the review letter state law didn’t give the department the legal authority to propose the ban through administrative rules. State law also didn’t give the board the legal authority to consider such a rules proposal.

He wrote, “An agency may not provide itself by rule with the authority to implement or prescribe a law or policy, which is what these proposed rules seek to accomplish. The law must provide the board with the authority to adopt certain academic content standards” [Bob Mercer, “SDDOE Releases Secret Letter on Noem’s Divisive Concepts,” KELO-TV, 2022.12.27].

Governor Noem hates government overreach… except when she’s reaching for more control.


  1. Mark Anderson 2022-12-28 08:11

    You’ve got to skip those pesky facts South Dakotan’s, they are so divisive.

  2. Pat Bilek 2022-12-28 09:43

    That NOem’s attempt at muzzling educators failed should surprise no one. She overreaches and tries to exceed her authority on a regular basis.

    Her directive to root out “inherently divisive concepts” was a thinly veiled attempt to curry favor with the MAGA crowd in hopes of increasing her national profile so that one day she could wave goodbye to South Dakota in the rear view mirror.

    If not for the dogged persistence of reporters and journalists, this story would most likely never would have seen the light of day.

  3. Donald Pay 2022-12-28 11:53

    The state government in South Dakota is filled with outlaws. How many statutes did Noem’s administration violate in their efforts to illegally enact “divisive concepts rules,” and then illegally hide why they legal couldn’t enact “divisive concept rules?” I mean this rivals the first Janklow administration in terms of mafia-style lawlessness. It’s time to make some of these shenanigans subject to criminal laws, and automatic removal from office.

  4. Anne 2022-12-28 13:28

    While overreach is involved, what is more striking is the bumbling incompetence.

  5. Mark Anderson 2022-12-28 16:17

    Donald Pay, all anyone has to do is look at the con man from New York. His resume is nearly 100 per cent false. If Santos had been hired by any of the places he claims he worked he would have been out the door seconds after his lying was revealed. The Republican party welcomes him. It’s sad, the grand old party has nothing anymore.

  6. Arlo Blundt 2022-12-28 18:18

    Yep, there are lots of lawyers lurking around on the payroll in Pierre, making life miserable for the “whiz bang” political appointees who don’t know a law from a garage door. Once in a while, the lawyers stick out a foot and trip up those ambitious, vacant minded “true believers”, who have somehow found their way to the Capital. We’re all better off for having them there.

  7. Bob Newland 2022-12-28 18:58

    I project that a number of divisive concepts shall arise.

  8. Bill 2023-01-02 07:17

    Anne, You nailed it with “bumbling incompetence.”

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