South Dakota’s HB 1270, proposed this year, was a simple, straightforward academic freedom bill. Unfortunately, it did not pass, but I would like to correct some misconceptions that came up in the House.
The bill read:
No teacher may be prohibited from helping students understand, analyze, critique, or review in an objective scientific manner the strengths and weaknesses of scientific information presented in courses being taught which are aligned with the content standards established pursuant to § 13-3-48.
A Danger of Lawsuits?
The House Education Committee discussed the bill at length. I will address part of the dialogue, which I transcribed from the state’s audio of the hearing:
Rep. Erin Healy: I’m not quite sure who this question is for, but I’m just curious if this could cause any potential lawsuits, and if so, who would be the defendant. Would it be the district? Would it be the state?
Mr. Brett Arenz (Department of Education): Yes, we would see potential lawsuits. There was a similar bill in 2017 and I think Associated School Boards testified that they would expect a number of lawsuits, and it would be against the school district that would be facing them.
Healy: Follow-up question, where would that money come from? What fund would that money come from, from the district?
Arenz: You know I can’t speak personally to the finances of a school district, but it would have to come from somewhere, likely from their general fund, taken away from instructing students.
Healy: Would this hurt that school district if this lawsuit were to occur?
Arenz: Yes, I think if funds were diverted from instructing kids that would be detrimental to the school district.
Rep. Nancy Rasmussen: Could you give me two examples of what a teacher would actually say in a classroom that would cause a lawsuit?
Arenz: There was some testimony from Dr. Harris about intelligent design. If I understood correctly he was saying that would be allowed. Well, there are court cases that intelligent design is just creationism by another name. So if you were to speak of intelligent design that could subject a school district to liability.
Rasmussen: So give me an example, pretend I am a student and you are the teacher, what would you tell me that would cause me to go home and tell my parents and then they would sue the school?
Arenz: I don’t have any specific examples, but generally I think it’s an issue of teaching personal opinions rather than scientific evidence. So if you were to teach your personal religious beliefs as they relate to an issue, that would subject a school to liability. Or if the school district were to terminate the individual for not following the curriculum, there would be a disagreement between the employee and the school district, as to a wrongful termination perhaps.
Brett Arenz displays some common misunderstandings here about academic freedom legislation.
(1) Contrary to his assertion that school districts should expect “a number of lawsuits,” Louisiana has had an academic freedom law similar to HB 1270 on the books since 2008, and Tennessee since 2012. Neither state has been subjected to lawsuits because of these laws.
(2) When Arenz implies that the bill would authorize a teacher to teach “personal religious beliefs,” he ignores the clear language of the law. The bill only protects teachers when they help “students understand, analyze, critique, or review in an objective scientific manner the strengths and weaknesses of scientific information presented in courses being taught which are aligned with the content standards….” There is nothing in this language that authorizes a teacher to present his or her personal religious beliefs.
(3) He also gives an example about teaching intelligent design. But intelligent design is not in the content standards for the state, so this bill would not protect or encourage teaching about intelligent design.
(4) Regarding terminating an employee who doesn’t follow the curriculum: This is no different from the situation under existing law. If a teacher feels he was wrongly terminated, he can challenge that in court.
In sum, academic freedom bills like South Dakota’s HB 1270 are limited, proven legislation. The alarm that is habitually raised is groundless.