June 29, 1987
Mr. Deming Smith
Davenport, Evans, Hurwitz & Smith
Post Office Box 1030
Sioux Falls, South Dakota 57101-1030
OFFICIAL OPINION NO. 87-21
Textbook loan law
Dear Mr. Smith:
On behalf of the Sioux Falls Public School District 49-5, you have requested my opinion regarding implementation of South Dakota's recently enacted Textbook Loan Law. As adopted by the 1987 Legislature, effective July 1, 1987, the Textbook Loan Law (SDCL 13‑34‑23) provides:
13-34-23. Each public school board shall loan without charge to all persons ages five through nineteen who are either enrolled in a public school, or in a school supervised in accord with chapter 13‑4, or who are engaged in a course of instruction pursuant to § 13‑27‑3, within the school district under such board's jurisdiction or who are residing in such district but are not enrolled in any such school or engaged in any such course of instruction, such nonsectarian textbooks designed for individual use as are normally furnished by such school board to individual students enrolled in the public schools of the district under such board's jurisdiction. All such textbooks shall be approved by the respective school boards.
Based upon the foregoing statute, you have asked the following questions:
QUESTIONS:
1. Must the textbooks loaned by the school board to nonpublic school students be the same titles or editions as the board furnishes to individual students enrolled in the public schools of the district under the board's jurisdiction, or may the school board approve different titles or editions, so long as they are nonsectarian textbooks designed for individual use, and similar but not identical to the textbooks furnished by the board to individual students enrolled in the public schools of the district?
2. The textbooks furnished by our school board for the use of students in Kindergarten, First Grade and Second Grade are consumable textbooks, that is, used by one student for one school year and then discarded. May the school board lend consumable textbooks to nonpublic school students?
BACKGROUND:
The history of loaning textbooks to nonpublic school students in this State has been long and stormy. In 1943, the original statute regarding provision of textbooks to students was construed by the South Dakota Supreme Court to not include students attending a nonpublic or parochial school. See Haas v. Yankton, 69 S.D. 303, 9 N.W.2d 707 (1943). In 1973, the Legislature enacted SDCL 13-34-16.1. This statute specifically provided that textbooks could be loaned to students in nonpublic schools and made certain limitations on the value of books that could be loaned. In 1976, that statute was struck down as unconstitutional by the South Dakota Supreme Court holding that it violated Article VI, section 3, and Article VIII, section 16 of the South Dakota Constitution. See McDonald v. School Board of Yankton, Etc., 246 N.W.2d 93 (S.D. 1976). The Legislature responded in 1977 by passing SDCL 13-34-16.2 and -16.3. These statutes specifically adopted the "child benefit doctrine" recognized under the United States Constitution. These statutes remained in operation until they were held unconstitutional by the South Dakota Supreme Court in 1985. Once again the statutes were held to be unconstitutional on their face under the South Dakota Constitution. See Cert. of Question from U.S. District Court (Elbe v. Yankton), 372 N.W.2d 113 (S.D. 1985).
The Elbe case arose out of a case commenced in Federal Court in 1980 which may be found as Elbe v. Yankton, 714 F.2d 848 (8th Cir.) S.D. 1983). The Eighth Circuit reversed a district court summary judgment holding the statutes constitutional and remanded the case for trial on the merits. The district court then certified the question to the South Dakota Supreme Court and the result was the South Dakota Supreme Court Elbe opinion cited above. In 1986, the South Dakota Legislature adopted Senate Joint Resolution 3, submitting an amendment of the South Dakota Constitution to the voters at the 1986 general election. The proposed amendment would add a new section to Article VIII of the South Dakota Constitution reading as follows:
§ 20. Notwithstanding the provisions of section 3, Article VI and section 16, Article VIII, the Legislature may authorize the loaning of nonsectarian textbooks to all children of school age.
The proposed amendment was adopted by the voters and the 1987 Legislature undertook to implement the provisions of the amendment through enacting SDCL 13-34-23 as set out above. The foregoing background supplies an appropriate setting for your questions.
IN RE QUESTION NO. 1:
The plain words of the statute applying to your first question provide that a "public school board shall loan without charge...such nonsectarian textbooks designed for individual use as are normally furnished by such school board to individual students enrolled in the public schools of the district under such board's jurisdiction. All such textbooks shall be approved by the respective school boards."
There are three criterion the loaned textbooks must meet. First, they must be nonsectarian textbooks. Second, they must be designed for individual use and of the type normally furnished by the board to its own students. Third, textbooks must be approved by the school board.
The statute does not require the textbooks to be the same textbooks as are furnished to the public school students. The final sentence of the statute requires that the textbooks be approved by the school board. If they were the same textbooks provided to the public school students, the act of providing those textbooks would constitute the necessary approval. Giving effect to the last sentence of the statute leads to the conclusion that the board has the authority to approve textbooks for loaning purposes different from those provided to the public school students.
Of course, the first two requirements that the textbooks be nonsectarian and that they be for individual use must be met. This prohibits providing textbooks to teachers and furthermore allows a school district the discretion of determining that the only textbooks they will approve are the same textbooks that are provided to the public school students.
Going beyond the plain words of the statute, the questions must be addressed in terms of the State and Federal Constitutions.
The South Dakota Supreme Court on three prior occasions has held that Article VI, section 3 and Article VIII, section 16 of the South Dakota Constitution prohibit the loaning of textbooks to nonpublic school students. The 1986 amendment to the Constitution specifically provides that the indicated sections of the Constitution are not applicable to the loaning of textbooks to all students. It follows that there is now no South Dakota constitutional prohibition regarding the particular type of textbook loaned unless found in the 1986 amendment to the Constitution. That amendment makes only two limitations upon the textbooks. First, they must be nonsectarian textbooks. Second, they may be loaned only to children of school age. There is no requirement in the constitutional amendment that the textbooks loaned be identical to the textbooks provided to the public school students.
The Federal Constitutional question was directly addressed by the Eighth Circuit in Elbe v. Yankton. Plaintiff there raised three attacks against the South Dakota statute in order to defeat the application of the "child benefit theory" of textbook loaning to parochial students previously established by the Supreme Court in Board of Education v. Allen, 392 U.S. 236 (1968); Meek v. Pittenger, 421 U.S. 349 (1975); and Wollman v. Walter, 433 U.S. 229 (1977). The attacks were: (1) that the South Dakota statutes referred to "nonsectarian" books rather than "secular" books; (2) that South Dakota statutes do not require the same textbooks as those used in public schools; and (3) that the South Dakota statute does not restrict text-related workbooks to those which are reusable. The Federal court accused the South Dakota Legislature of semantic carelessness in using the word "nonsectarian" as opposed to the word "secular" in relation to textbooks. The court, reading the statute as a whole, concluded that the books to be loaned must be acceptable for use in the public schools and therefore limited to secular textbooks only. The Court went on to say that the South Dakota statutes were the functional equivalent of the Statutes approved in Allen and Meek.
In light of the foregoing we conclude that appellants' contention that the South Dakota statutes are constitutionally flawed because they do not require the same textbooks as those used in the public schools requires little comment. It should suffice to note that neither of the statutes upheld in Board of Education v. Allen or Meek v. Pittenger contained such a requirement. 714 F.2d at 852, n.2.
Accordingly, given the very similar wording of the statute reviewed by the Eighth Circuit and the present statute, there is no Federal Constitutional problem arising from the fact that the school board provides different textbooks for parochial school students than it does for public school students so long as the textbooks, in either case, are not religious in nature.
My answer to your first question is that school boards are not required to provide the same textbooks under the Textbook Loan Statute as they provide to the public school students. It is within the discretion of the board, through the approval process, to limit the textbooks loaned solely to the identical textbooks that are provided to the public school students. It is not within the discretion of the board to provide sectarian textbooks only to students. Nor may the board loan only outdated or discarded books to the nonpublic students unless similar books are used by the public school students.
IN RE QUESTION NO. 2:
Under the prior statute, school boards were required to provide textbooks and text-related workbooks to nonpublic school students. This provision was apparently a matter of some concern to the South Dakota Legislature, both in the adoption of the proposed constitutional amendment and in the adoption of SDCL 13-34-23.
Review of SL 1986, chapter 3 - Senate Joint Resolution 3 - as contained in the 1986 Session Laws, reveals that the words "and related workbooks" appeared in the initial version of the proposed amendment as submitted to the Legislature by the then Governor. In the course of the legislative process the words "and related workbooks" were amended out of 1986 Senate Joint Resolution 3, and as submitted to the people the constitutional amendment did not contain that phrase. This bit of legislative history appears because, for some reason, the words "and - related workbooks" with overstrikes appear in the 1986 Session Law book.
Again in 1987 the original legislation also contained a phrase relating to text-related workbooks. The phrase was deleted in committee and does not appear in the statute as enacted. Clearly, there is no authorization for providing workbooks to children attending nonpublic schools. This, however, leaves open the question of what constitutes a workbook.
In preparing my answer to your question, I have reviewed textbook catalogs from at least two publishers. There appears to be a rather consistent pattern. For the primary grades of kindergarten, first and second, publishers identify three types of books - regular textbooks, consumable pupil's books, and workbooks. It appears that consumable pupil books are a combination textbook and workbook. They are like a textbook in that they contain all of the material the student studies. They are like a workbook in that the student is instructed to write his answers and do his exercises in the book itself.
Webster's Collegiate Dictionary defines textbook as "a book used in the study of a subject." A relevant definition of workbook is "a student's individual exercise book of problems to be solved directly on the pages." There is no singular definition for the phrase "consumable textbook." Once it is determined that a workbook and a consumable textbook are not the same, further elucidation is possible.
In the prior versions of this statute the matter was addressed as "text-related workbooks" which were allowed. The phrase was specifically deleted from the present statute as were the words "related workbooks" from the Constitutional Amendment. Accordingly, it seems quite clear that school boards are not authorized to provide textbooks and associated or related workbooks to the nonpublic school students. On the other hand, assuming that in some subjects in the primary grades the only available textual material is in the form of consumable pupil books, it does not seem reasonable that the Legislature or the people intended these students to receive no books whatever.
Clearly, no problem regarding this question arises under the Federal Constitution. In Elbe, discussing the third attack made by the plaintiffs on the South Dakota statute under the Federal Constitution, the Court stated:
We also fail to see any constitutional significance to the fact that the South Dakota statutes do not restrict "text-related workbooks" to those that are reusable as did the Pennsylvania statute in Meek or the parties' stipulation concerning the Ohio statute in Wollman v. Walter. We can glean nothing from those cases which even remotely suggests that the constitutionality of the statutes turned on the reusable nature of the workbooks, and based upon our reading of these cases, as well as Allen, we cannot conclude that providing nonreusable text-related workbooks to all children in both public and private schools would have a substantially greater effect that advances religion than would the loan of any other secular text.
714 F.2d at 852, n.2.
As stated above, although under the Federal Constitution text-related workbooks could be provided, I am convinced that, given the legislative history, text-related workbooks may not be provided to nonpublic school students.
In answer to your second question, school boards do have the authority to provide consumable textbooks or pupil books to nonpublic school students if they so choose. On the other hand, through exercise of the board's discretion in loaning only approved textbooks, a board could refuse to provide consumable pupil books to nonpublic school students; however, this discretion may not be exercised in a manner that completely prohibits primary grade students from receiving textbooks in the subject areas required to be taught in the public schools of this State.
Sincerely,
Roger A. Tellinghuisen
ATTORNEY GENERAL
