STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
August 5, 1974
Dr. Don Barnhart, Superintendent
Division of Elementary & Secondary Education
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 74-35
Dear Dr. Barnhart:
You have made reference to SDCL 13-37-16 and have requested an opinion on the following specific questions:
1. Is it mandatory that every school district make an initial levy for the special education fund if the school board determines that general fund monies can cover district costs of special education?
2. Is it mandatory that every school district make a levy for special education each year?
3. Is it mandatory that each school district establish a special education fund?
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 and 13-37-8.10, inclusive.
Every district, even though not operating a special education program, shall make an initial levy in order to insure the payment of claims arising under the provisions of this chapter for the assignment of exceptional children.
The obligation for the special education was shifted from a county special education fund to a school district special education fund effective January 1, 1969, as a result of Chapter 51, Session Laws of 1968. The second paragraph of SDCL 13-37-16, therefore, has reference to an initial levy for the 1969 tax year. In answer to your question No.1, it is my opinion that the second paragraph of SDCL 13-37-16 is no longer applicable and the answer to your question No.1 is therefore, NO.
With reference to your question No.2, SDCL 13-37-16 reads in part as follows:
It shall then (see SDCL 13-37-15) be the duty of the governing board ... to include in the current district levy,… a special levy …for the amount so determined to be necessary …
SDCL 13-37-15 reads as follow:
The governing boards of all school districts in the state, with the assistance of their administrative personnel and the division, shall on or before the tenth day of July of each year make an estimate of the number of exceptional children residing within the school district who are entitled to and probably will avail themselves of school privileges as exceptional children during the current school year and shall then estimate and compute the total cost of furnishing special education to all such exceptional children within the district.
In answer to your question No.2, it is my opinion that it is only mandatory that a school district make a special levy for special education for the amount such school district determines is necessary for special education within the levy limitation.
In answer to your question No.3, it is only mandatory that a school district create a special education fund when a special levy is made for special education (see Official Opinion 73-15, dated June 11, 1973).
Respectfully submitted,
Kermit A. Sande
Attorney General
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