STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
February 23, 1974
Dr. Jan Ebersdorfer, Acting Secretary
Dept. of Education and Cultural Affairs
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 74-06
General education moneys may supplement special education moneys of school districts.
Dear Dr. Ebersdorfer.:
Your predecessor, Mr. Deam, requested an opinion on the following factual information:
It is my understanding that every child enrolled in the public schools of South Dakota is entitled to basic financial support from the general fund offered all children of that district. The two mill levy authorized under SDCL 13-37-16 for exceptional children is to be used for meeting the excess cost factors involved in providing special services to exceptional children. In reviewing the funding procedures of special education of other states, it has been the policy that the basic costs for such services were to be provided by local school districts from general fund, and that excess costs were to be financed through special legislation (SDCL 13-37-16). In no case should the finances raised from the special education levy be used to replace general fund support but rather to supplement that support.
Question submitted:
Is South Dakota law so designed as to conform with the practices of most other states whereby the legislative authority for special education is used as supplementary rather than basic support?
SDCL 13-37-16 reads as follows:
It shall then be the duty of the governing board of the school district to include in the current district tax levy, not to exceed two mills on the dollar of assessed valuation, as a special levy in addition to all other levies authorized by law for the amount so determined to be necessary, and such levy shall be spread against all of the taxable property of the district. The proceeds derived from such levy shall constitute a school district special education fund of the district for the payment of costs for the special education of all exceptional children who reside within the district pursuant to the provisions of §§13-37-8.1 to 13-37-8.10, inclusive.
Every district, even though not operating a special education program, shall make an initial levy in order to ensure the payment of claims arising under the provisions of this chapter for the assignment of exceptional children.
SDCL 13-37-17 reads as follows:
Claims for any costs incurred for special education of exceptional children prior to the end of the first semester of the 1968-£9 school year shall be paid from the county special education fund created by chapter 43 of the Session Laws of 1966. All claims for any costs of special education subsequent to the end of the first semester of the 1968-£9 school year shall be processed and paid from the school district special education funds as provided in this chapter.
SDCL 13-16-3 reads as follows:
The general fund of the school district is a fund provided by law to meet all the operational costs of the school district and to meet all the operational costs of the school district and to redeem all outstanding warrants against such fund. The mill levy for such fund shall be limited as provided by law.
In an official opinion No. 73-15 dated June 11, 1973, I held that the general fund moneys of a school district could be expended for special education programs. In answer to your specific question, it is my opinion that the South Dakota laws provide that the general fund moneys of school districts may be used to supplement special education fund moneys when such special education funds do not meet the needs required by SDCL 13-37-17.
Respectfully submitted,
Kermit A. Sande
Attorney General
