STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
July 18, 1974
Senator Jerry Mayer
1615 South 5th
Sioux Falls, South Dakota 57105
OFFICIAL OPINION NO. 74-31
Authority of the board of vocational education over post-secondary education
Dear Senator Mayer:
You have submitted the following factual situation:
The State of South Dakota, through the Division of Vocational Education within the Department of Education and Cultural Affairs, provides an annual appropriation for the operation of postsecondary vocational education programs at the five area vocational schools located in Mitchell, Rapid City, Sioux Falls, Sturgis and Watertown. This appropriation serves to reimburse the local school district for expenditures it has made. This state reimbursement has been less than 25% of local expenditures but additional funds received from federal reimbursement and student tuition results in a program which receives only negligible local funding, although the local district retains administrative and budgetary authority over the school. Currently, the Division of Vocational Education has authority over the post-secondary vocational schools, however, this authority has been exercised primarily in the area of program approval.
In addition to the vocational education programs operated at the area vocational schools, the State Board of Regents operates technical programs and one- and two-year programs of study which might be termed vocational education. These programs presently enroll about 1,000 students on the college and university campuses. The funds to pay for the programs came from the higher education budget passed by the Legislature. The Springfield-USD campus is unique in that it is the only school operated by the Regents which receives money from the Division of Vocational Education, but the amount is negligible.
You have requested an opinion on the following specific question:
May the Board of Vocational Education continue to possess governing authority over the post-secondary vocational education programs offered at the area vocational schools; or does Article XIV, §3, of the Constitution of South Dakota require that this governing authority be exercised by the Board of Regents of Higher Education.
Article XIV, §3, of the South Dakota Constitution adopted at the start of statehood reads as follows:
The state university, the agricultural college, the normal schools and all other educational institutions that may be sustained either wholly or in part by the state shall be under the control of a board of nine members, appointed by the governor and confirmed by the senate, to be designated the regents of education. They shall hold their office for six years, three retiring every second year.
The regents in connection with the faculty of each institution shall fix the course of study in the same.
Aticle XIV, §3, was amended in 1896 and also in 1944 and now reads as follows:
The state university, the agriculture college, the school of mines and technology, the normal schools, a school for the deaf, a school for the blind, and all other educational institutions that may be sustained either wholly or in part by the state shall be under the control of a board of five members appointed by the Governor and confirmed by the Senate under such rules and restrictions as the Legislature shall provide. The Legislature may increase the number of members to nine.
It is noted that as originally adopted, this section provided a nine-member board specifically designated as the regents of education. This section as amended in 1944 added the school of mines and technology, school for the deaf, and school for the blind. The 1896 amendment granted the Legislature authority for establishing rules and restrictions and also eliminated the specific designation of the board of regents of education.
Article XIV, §3, as originally adopted was not self-executing. Article XIV, §3, as amended in 1896 reads as follows:
The state university, the agricultural college, the normal schools and all other educational institutions that may be sustained either wholly or in part by the state shall be under the control of a board of five members appointed by the governor and confirmed by the senate under such rules and restrictions as the legislature shall provide. The legislature may increase the number of members to nine.
Article XIV, §4, which was repealed in 1896 provided for a board of five trustees for each institution under the control of the regents.
Sections 1 and 2 of Chapter 58, SL 1896 provided for a board of five trustees for each institution under the control of the regents.
Sections 1 and 2 of Chapter 58, SL 1897, was enacted by the Legislature to implement Section 3 of Article XIV and this statute became the basis of SDCL 13-49-1. SDCL 13-49-1, prior to the last amendment in 1971, read as follows:
The control of the educational institutions of the state which are sustained wholly or in part by the state shall be vested in a board of seven members, designated as the board of regents. The board members shall be appointed by the Governor, by and with the consent of the senate.
SDCL 13-49-1 as last amended by Chapter 129, SL 1971, reads as follows:
The control of the public, post-secondary educational institutions of the state offering college credit which are sustained wholly or in part by the state shall be vested in a board of seven members, designated as the board of regents. The board members shall be appointed by the Governor, by and with the consent of the senate. (Emphasis supplied)
It is my opinion that the Legislature has interpreted Section 3 of Article XIV of the Constitution to limit the board of regents to control only the public post-secondary institutions of the state offering college credit.
In answer to your specific question, it is my opinion that the board of vocational education may continue to possess governing authority over the postsecondary programs that do not offer college credit.
Respectfully submitted,
Kermit A. Sande
Attorney General
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