'Hawaiian Day' investigation: USD students' free speech not violated by party name change

University of South Dakota law students changed their Hawaiian Day party name to avoid controversy, but a USD investigation found that sources outside the university snowballed the controversy by creating a false narrative about it on the same day the Legislature was handling a campus free speech bill.

The external spotlight on the party caused the host, USD's Student Bar Association, to be "overwhelmed with pressure from all directions" because they hadn't anticipated it, USD President Sheila Gestring reported to the legislative Government Operations and Audit Committee on Wednesday.

However, the investigation found that the party theme didn't violate USD's free speech policy because students hadn't intended to engage in speech conduct with a distribution of leis at the party and students were still able to wear leis if they wanted, Gestring said.

USD School of Law administration, which had approved the party and its theme, also didn't violate the free speech policy with a suggestion in an email to the student association that students not distribute leis because it was an agreement with students' opinion to not distribute them. However, the email could have been better worded, Gestring said. 

"Words matter, and the wrong ones were chosen for this communication," Gestring said. "Without the language of the meeting preceding it, the language reads more as a directive, which they had no authority to issue."

More:USD law students change party theme after 'Hawaiian Day' deemed 'culturally insensitive'

Hawaiian Day fallout leads to teachable moment

Rep. Sue Peterson, R-Sioux Falls, said the important thing going forward is that everyone is aware and trained in the state's new law regulating campus free speech, which goes into effect July 1, and start to make that "paradigm shift." 

Now that the investigation is complete, it's a teaching moment for USD, Gestring said in response to questions about how the university would handle future situations. She said it's important for USD employees to explain the pros and cons of each side to allow student associations to navigate "the ensuing aftermath" themselves rather than giving them "an out" to a situation.

Sen. Justin Cronin, R-Gettysburg, pointed out that they were college students looking for advice, and neither the students or administration should be blamed in this situation. He said he was frustrated to see "everyone attacking kids in a college."

These types of situations are happening all over the United States and the leader of the student association shouldn't be apologetic about the controversy because anyone can complain about anything, said Rep. Isaac Latterell, R-Tea. He suggested that the advice to students should be to "push back against the insanity" of people being offended.

"Anybody can say 'I'm offended by this, this is insensitive in some way,' whether you're celebrating one culture or another," Latterell said. 

How the controversy started

The Student Bar Association decided to have a party with a Hawaii theme in February as a fun way to relieve stress, according to USD attorney AJ Franken, who completed the investigation. 

After the party flyer was distributed, one student — who Gestring said has some family connections to indigenous populations — contacted the association with concerns about the party name and leis possibly being culturally insensitive to indigenous populations and violating USD's inclusiveness policy.

The association decided to change the theme to "Beach Day" because the party was about having fun and wasn't about controversy, Franken said.

The association posted the new name on Facebook saying they'd been notified about the cultural insensitivity, but it wasn't clear it was by the student, not USD administrators, Gestring said. The conservative blog South Dakota War College wrote that USD was "censoring" the students and connected it to the campus free speech bill that had been defeated in the Legislature that morning. 

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

In reality, Gestring said, USD employees weren't involved in the party name change and the law school administration only became involved when the association turned to them for help in handling the fallout caused by that blog post. Students asked the administration if they should cancel the party, to which the administrators encouraged them to continue with the party and sent an email afterward saying that they understood how it could be culturally insensitive and agreed with the association that leis shouldn't be handed out at the party.

Lawmaker aims to ensure free speech

Peterson, who sponsored the campus free speech bill this year, said it sounded like some members of the student association believed it was better to "self censor than to let a heckler continue, and they were willing to sacrifice what their rights would be just to silence the opposition."

More:Free speech bill revived amid USD 'Hawaiian Day' investigation

Franken responded that Peterson's comment was incorrect. He explained that the goal was to have a fun, relaxing event for students and wasn't to convey a message. Peterson argued that although they weren't trying to convey a message, changing the name violated their right to free speech to have a "Hawaiian Day." Franken again said Peterson was incorrect because while students have a right to free speech, the name change didn't change the goal of the party.