July 20, 1976

Mr. E. B. Oleson, State Director
Division of Vocational- Technical Education
Department of Education and Cultural Affairs
New State Office Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 76-70

Pierre School of Practical Nursing

Dear Mr. Oleson:

You have requested an opinion based on the following factual situation:

The Pierre School of Practical Nursing is a private school operated for the purpose of educating beginning practitioners on a practical nurse level. The governing board is the same as the governing board of St. Mary's Hospital, however, a separate director is appointed for the school and the administration is independent of the ad­ministration of St. Mary's Hospital. No sectarian doctrine is taught in the Pierre School of Practical Nursing even though the governing board and the director are all sisters of the Mother of God Priory.

The Division of Vocational Education is authorized under Federal Regulations, volume 39-number 143-section 102.5, to enter into contracts with private schools for assistance in conducting ap­proved vocational education programs.

Based on the above you have asked the following specific question:

Would the Division of Vocational Education be in violation of Sec­tion 16, Article VIII of the South Dakota Constitution if they entered into a contract for financial assistance to the Pierre School of Practical Nursing?

Article VIII, § 16 provides:

No appropriation of lands, money or other property or credits to aid any sectarian school shall ever be made by the state, or any county or municipality within the state, nor shall the state or any county or municipality within the state accept any grant, con­veyance, gift or bequest of lands, money or other property to be used for sectarian purposes, and no sectarian instruction shall be allowed in any school or institution aided or supported by the state.

The South Dakota Supreme Court on July 9, 1976, issued an opinion in the case of McDonald v. Yankton Independent School District No.1 inter­preting § 16, article VIII, of the South Dakota Constitution. In that opin­ion, the Court declared unconstitutional the statutes authorizing loaning of textbooks to students in nonpublic schools.

The Court stated:

We do not doubt the motives of the Legislature of this state in at­tempting to do equity, considering the pressing and ever-increasing financial demands on both the public and private schools and a dual burden on parents of children in the nonpublic schools. We are not, however, concerned with the wisdom of the legislation, but only with its constitutionality.

We therefore hold that the provision of SDCL 13-34-16.1 is un­constitutional and, to the extent that SDCL 13-34-16 provides for the loan of textbooks to private school students, it is likewise un­constitutional under the provisions of the South Dakota Constitu­tion, article VI, § 3, and article VIII, § 16. (Emphasis added.)

In view of the Court's interpretation and apparent application of article VIII, § 16, to all nonpublic or private schools, I feel compelled to conclude that the Pierre School of Practical Nursing cannot be the recipient of finan­cial assistance through the Division of Vocational-Technical Education. Such aid would, under the McDonald decision, be in violation of § 16, arti­cle VIII of the South Dakota Constitution. It is extremely unfortunate that our Supreme Court has interpreted our state constitution in such a manner when an alternative interpretation would be more logical (see dissent of Dunn, Chief Justice), but I am compelled by law to follow the mandate of the Supreme Court.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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