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USD Investigation: University did not censor students' free speech in 'Hawaiian Day' party controversy

PIERRE, S.D. -- After University of South Dakota students in February decided to change the name of their "Hawaiian Day" party to avoid controversy, accusations of censorship from the school ran rampant and the Legislature ultimately passed a campus free speech bill.

But according to the university's investigation presented to state lawmakers on Wednesday, April 24, administrators, in fact, did not censor the students' free speech when they chose to change the name from "Hawaiian Day" to "Beach Day."

A situation which ultimately made national headlines began when USD Law School's Student Bar Association (SBA) wanted to host a party for students to have fun and de-stress in late February, USD President Sheila Gestring told the Legislature's Government Operations and Audit Committee. They decided to make it Hawaiian-themed, with floral shirts and leis -- a contrast to February's frigid temperatures.

According to the university's investigation, SBA leadership requested permission from the law school's administration to host the Hawaiian Day party using available student activity funds. The administration approved.

After announcing the party, one student reportedly complained to the SBA that the party's theme was culturally insensitive to Native Hawaiians, and was against the university's inclusion policy. USD legal counsel AJ Franken, who led the investigation, said the student was persistent, sending multiple emails to SBA leadership and demanding to meet.

Franken found in the investigation that it was then that party organizers decided themselves to change the party name to Beach Day. The name of the party was unimportant, he said, so they changed it in an attempt to avoid any controversy or appearance of cultural insensitivity.

Then, Gestring said a student's Facebook post about the name change was misinterpreted by "individuals external to USD" to mean that the university itself made the group change the party's name and censoring the students.

"Others quickly seized on that false interpretation and apparently were very successful to generate a national media controversy suggesting that USD had censored the event name change," Gestring told legislators.

Gestring said the ensuing controversy was what the party's organizers were hoping to avoid in the first place, which she attributed to "false media stories."

"Overwhelmed with pressure from all directions," Gestring said it was then that SBA leadership reached out to USD law school administrators seeking advice. Administrators advised the students to go on with the party and not to change the name back to Hawaiian Day, but Gestring stressed that the students made that decision in the first place.

Despite the investigation's conclusions, Rep. Sue Peterson, R-Sioux Falls, on Wednesday questioned whether being pressured to "self-censor" because of a "heckler" was a violation of SBA students' free expression.

Franken said no: "Students have the right to speak. They also have the right to refrain from speech," he said.

Peterson was the prime sponsor of House Bill 1087 during the 2019 legislative session, which sought to "promote free speech and intellectual diversity" at South Dakota's public colleges and universities. The bill was defeated in February, amid arguments that the state's Board of Regents should be trusted to enforce its own campus free speech policy.

HB 1087 was ultimately brought back to life and signed into law by Republican Gov. Kristi Noem on March 20.

Rep. Isaac Latterell, R-Tea, said Wednesday that the SBA's situation is part of a nationwide trend where "wild complaints and accusations" are made. Gestring said USD is starting to develop "know your rights" workshops for student leaders and seminars on campus free speech for students, faculty and staff.

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