South Dakota ACLU says Dept. of Education may have violated federal and constitutional law

KELOLAND.com Original

SIOUX FALLS, S.D. (KELO) — The ACLU of South Dakota has sent a letter to Governor Kristi Noem and the members of the South Dakota Department of Education’s Board of Education Content Standards. The letter outlines the ACLU’s opposition to the DOE’s removal of elements of Native American culture and history from a draft of the state’s social studies education content standards.

The original draft of the standards was created by a dedicated work group, and the ACLU states in its letter the removal of Native American references “likely violates federal Equal Protection and First Amendment provisions of the United States Constitution,” as well as Article VIII, Section 1 of the South Dakota Constitution.

 § 1.   Uniform system of free public schools. The stability of a republican form of government depending on the morality and intelligence of the people, it shall be the duty of the Legislature to establish and maintain a general and uniform system of public schools wherein tuition shall be without charge, and equally open to all; and to adopt all suitable means to secure to the people the advantages and opportunities of education.

South Dakota Constitution: Article 8, Section 1

The letter calls not just for a reinstatement of Native American elements into the content standards, but for additional elements to be added as well.

The ACLU supports additional OSEU (*Oceti Sakowin Essential Understandings) and Native American topic recommendations by the second revision committee to supplement the previous recommendations. The original recommendations were crafted by the first revision committee comprised of highly educated, competent, and interested stake-holders.

Letter from the ACLU of South Dakota

*Oceti Sakowin [oh-CHEH-tee shaw-KOH-we] means “Seven Council Fires” and refers collectively to the Lakota, Dakota and Nakota people.

In an email statement, Noem’s communications director Ian Fury claimed the ACLU is misunderstanding the issue, writing in part:

“The ACLU appears to fundamentally misunderstand the Governor’s plan. The Oceti Sakowin Essential Understandings remain in place – they aren’t going anywhere. They are completely separate from the social studies standards. Given that fact, the rest of this letter makes no sense — Governor Noem will continue working to ensure that our kids learn real South Dakotan and American history, and a wide variety of voices will have an opportunity to weigh in on that process.”

Fury also offered his thoughts on the matter on Twitter.

KELOLAND News also reached out to the DOE, and were told via email that they have no comment at this time.

Stephanie Amiotte, Legal Director of the ACLU of North Dakota, South Dakota and Wyoming says that it is Fury and the governor’s office who are misunderstanding the issue.

“The argument really misses the point with respect to the constitutional violations,” she said.

“The fact remains,” continued Amiotte, “that the Department of Education convened a committee of subject matter experts on the education system in South Dakota. The Department of Education’s own committee, that they chose, recommended that the OSEUs be included as a part of the state standards.”

Amiotte outlined the areas in which the ACLU claims the state may be in violation.

Discussing the potential violation of the Equal Protection clause, she says it is beneficial to understand the history of Indigenous education in South Dakota.

“Historically, Native American children were removed from their families and placed in boarding schools,” she said. “The children were not allowed to practice any of their beliefs. They were forced to learn English. They were prohibited from speaking their native tongue, and essentially had developed a weaponization system through our educational system.”

Amiotte says this background context makes clear the importance of having an educational system which counteracts the historical experience. “Under the equal protection of the Constitution — the government violates equal protection clause if the motivating factor behind the DOE’s actions involves racial discrimination.”

Amiotte says that even if racial discrimination is not a motivating factor, “if the impact is to racially discriminate against the Oceti Sackowin or Native Americans in the region, that is something that can also serve as a basis for a constitutional violation under the Equal Protection clause.”

On the subject of a possible violation of the First Amendment, Amiotte said it is important to realize the First Amendment covers more than just free speech. “What people don’t realize a lot of the time is that the First Amendment also protects the right to receive information and ideas.”

Amiotte said that by removing topics relating to the Oceti Sakowin, they are depriving students of the ability to receive and benefit from the teachings.

According to Amiotte, a possible violation of the state constitution occurs due to requirements imposed on the DOE. “Under our state constitution, the school systems are supposed to be open and accessible and available to all students. They also need to benefit all students who attend school, and that includes Native Americans.”

Amiotte argues that the absence of requirements to teach Native American elements strips Native American students of the opportunity to feel welcome within the school setting and to engage more meaningfully with the education process.

“The best way to convey to a student that they belong in a classroom is to make the curriculum relevant and accurate as to them in particular,” she said.

Asked if the letter to the Governor and DOE is a precursor to legal action, Amiotte made clear that such measures were not imminent.

“We aren’t ruling out litigation after the Department of Education makes its final determination regarding the second revision committee’s recommendations,” she said. “If the second revision committee does not adopt or implement all of the prior committee’s recommendations for the OSCUs and Native American topics, we will be looking at our litigation options at that point.”

Asked for the best outcome, from the perspective of the ACLU, Amiotte spoke concisely.

“The best outcome would be that the Department of Education adopt all prior recommendations made by the first committee and instruct the second committee convened to add additional OSCU’s; add additional Native American topics and to include them in all subjects that are being taught in public schools.”

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