August 26, 1977

Ms. Judith Call
Secretary 
Department of Health 
Foss Building 
Pierre, South Dakota 57501

Official Opinion No. 77-75

Immunization and testing of school age children (SDCL 13-28-7.1)

Dear Ms. Call:

You have asked for an official opinion on the following question:

QUESTION: 

May a child who has not received immunizations required by SDCL 13-28- 7.1 and is not exempted therefrom, be excluded from attending a public school?

SDCL 13-28-7.1 provides as follows: 
    
Any pupil entering school for the first time in this state, shall, prior to admission, be required to present to the appropriate school authorities certification from a licensed physician that he has received a test or tests for tuberculosis and is free from a contagious form of this disease and he has received or is in the process of receiving immunization against poliomyelitis, diphtheria, measles and tetanus, by such means of immunization as are approved by the state board of health, or in the way of an alternative to such requirement shall present: 
     
(1)  Certification from a licensed physician stating the physical condition of the child would be such that a test and immunization would endanger his life or health; or 
     
(2)  A written statement signed by one parent or guardian that the child is an adherent to a belief whose teachings are opposed to such test and immunization; or 
     
(3)  A written statement signed by one parent or guardian requesting that the local health department give the test and immunizations because the parents or guardians lack the means to pay for such tests and immunizations; and 
     
(4)  A written statement from a licensed physician requesting that the child not be immunized.

It is well established that a school district or the Legislature prescribe conditions to be met prior to admission of students. Glover v. Board of Education of Lead (S.D. 1900), 84 N.W. 761.

Exclusion of students who fail to meet these conditions is a valid exercise of the police powers of the State.  Glover, supra.  This is based upon the sound public policy of insuring that schools do not become places where parents fear to send their children because of the possibility of contacting contagious and often debilitating diseases.  Where school attendance is mandatory, as in South Dakota, it is not inconsistent to require immunization prior to admission.

SDCL 13-8-39 provides that school boards have general charge, direction and management of the school.  Therefore, in my opinion, SDCL 13-28-7.1 both authorizes the local school boards to administer the program and imposes the obligation to preclude noncomplying students from attending school.

This naturally would include kindergarten students, as such students are required by SDCL 13-28-2 to be of legal school age and kindergarten is generally a student's “first entry” into the school system and contemplated by SDCL 13-28-7.1.

If a student has been admitted to school prior to the date of this opinion without the required immunization, and he or she does not qualify for one of the exemptions specified, such student shall be required to comply with SDCL 13-28-7.1 or be suspended from school.

The requirement of immunization does not cease if a student is allowed to enter school without the required certificate, but rather is of a continuing nature.  As I have earlier indicated, the underlying purpose for this legislation was not only to protect the immunized child but also to prevent the communication of a contagious disease to other school children who may come in contact with a diseased child.  Every school child as well as the public at large has the same right to be protected from communicable disease. The fact that the Legislature has mandated that immunization and testing should occur prior to school admission in no way detracts from this purpose and should not be construed as precluding the need for immunization of already enrolled students.  The very intent of the Legislature would be subverted if any other interpretation were followed.

SDCL 13-28-7.2 provides a mechanism for public monies to be used for payment of immunization costs.  Therefore, presumably testing and immunization is available to all school age children and should not impose undue financial hardship on anyone.

In my opinion, the answer to your specific question is yes.  A school age child who has not complied with SDCL 13-28-7.1 is subject to exclusion from school.

Respectfully submitted,

William J. Janklow
Attorney General

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