February 7, 1975
Senator Theodore Lerew
Nineteenth District
State Capitol Building
Pierre, South Dakota
OFFICIAL OPINION NO. 75-23
Rule 20:24:03:01 regarding the State Board of Dentistry
Dear Senator Lerew:
You have requested an official opinion regarding the effect of Rule 20:24:03:01 of the state board of dentistry. That rule of the state board of dentistry provides:
Applicants for license to practice dentistry and dental hygiene in South Dakota shall be graduates of a dental school which has been approved by and which appears on the list published by the council on dental education at the time of such application. Applicants shall be required to attach a photostatic copy of their diploma, or a letter from their school official, verifying his graduation status, to their application for examination. Applicants for license shall present to the board in person their original diploma granted by such dental college when he reports to the board for examination. A copy of the applicant's national board grades and a recent photograph of himself must accompany the application.
The council on dental education recognizes only graduates of schools in Canada and the United States. When this is seen in conjunction with the above rule it is obvious that the complaint you have received from a dentist trained in the Philippines, and denied the opportunity to take the examination in South Dakota, stems from the effect of the above rule and position of the council on dental education. According to existing regulations the only way a foreign trained dentist can get the opportunity to pass a licensing examination in South Dakota is for the foreign trained dentist to also be a graduate of a recognized dental school in the United States or Canada.
In the case of Schware v. Board of Bar Examiners, 355 U.S. 232, 1 L. Ed. 2d 796, 77 S. Ct. 752, 64 ALR 2d 288, the United States Supreme Court held that a state cannot exclude a person from the practice of law or any other occupation in a manner or for reasons that contravene the due process or equal protection clause of the fourteenth amendment. The Court went on to say that a state can require high standards before admitting applicants, but any qualification must have a rational connection to the applicant's qualifications.
It is my view that the effect of Rule 20:24:03:01 is an arbitrary and unreasonable exercise of the authority to pass rules and that the effect of the rule is to unlawfully discriminate against foreign educated dentists. Although a line of older cases such as Graves v. State of Minnesota, 272 U.S. 425, 71 L. Ed. 331, 47 S. Ct. 122 (1926) have upheld this sort of regulation it is my opinion that the exercise of rule making authority in the present case is so unreasonable and arbitrary that the constitutional right of equal protection recognized in Schware is unlawfully violated. The fact that this rule was approved by my predecessor does not in my view require that I reach the same conclusion.
As a final suggestion, it appears to me that the most effective way of dealing with this problem at this time, would be for the Legislature to amend SDCL 36-6 in such a way that the problem would be taken care of specifically by statute.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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