December 12, 1988

Mr. Jeffry L. Bloomberg 
Lawrence County State's Attorney 
78-80 Sherman Street 
Deadwood, South Dakota 57732

Official Opinion No. 88-55

School-birth certificate requirement

Dear Mr. Bloomberg:

Joseph E. Ellingson, your Deputy State's, Attorney, has requested my official opinion on the following matter:

FACTS: 

SDCL 13-27-3.3 requires the superintendent of any public or non-public school in this state to regularly report to the state's attorney the name and address of any child for whom the school does not have a copy of a certified birth certificate in violation of SDCL 13-27-3.1.

Based upon the foregoing facts, you have asked the following question:

QUESTION: 

Does SDCL 13-27-3.1 require production of a birth certificate, or affidavit in lieu of birth certificate, for children already attending a public or nonpublic school or alternative instruction program in this state or does this requirement apply only to newly enrolled children?

SDCL § § 13-27-3.1 thru 3.3, inclusive, provide:

SDCL 13-27-3.1: 

Any person who is required pursuant to § 13-27-1 to cause any child to attend any public or nonpublic school or alternative instruction program pursuant to § 13-27-3 in this state shall, either at the time of enrollment  in any school in this state or upon being excused from school attendance pursuant to § 13-27-3 or within thirty days of initial enrollment or excuse, provide the school with a certified copy of such child's birth certificate or affidavit in lieu of birth certificate as issued by the department of health in such cases where the original birth certificate is deemed unattainable. A violation of this section is a Class 2 misdemeanor.

SDCL 13-27-3.2: 

Any copy of any certified birth certificate provided pursuant to § 13‑27‑3.1 shall be maintained by the school and shall become a part of the child's permanent school record.

SDCL 13-27-3.3:

The superintendent of any public or nonpublic school in this state shall regularly report to the state's attorney the name and address of any child for whom the school does not have a copy of a certified birth certificate in violation of §  13-27-3.1.

The foregoing statutes were enacted by the 1988 South Dakota Legislature as one bill found as Session Law 1988 ch. 142. Based upon the wording of the  statutes and the testimony given by the prime sponsor and proponents of the Bill, it is clear that the Legislature intended to address a child's initial enrollment or initial application for excuse from school pursuant to SDCL 13-27-3 as opposed to immediately requiring all school-aged children in South Dakota to present birth certificates to their schools. Of course, over time, birth certificates of all school-aged children will be on file. I acknowledge that the second clause of the first sentence of §  3.1 or § §  3.2 and 3.3, read in isolation, could be read to require that birth certificates be on file for all children. It is, however, my opinion that under the principle of construing a statute in pari materia, the statutes should be read to apply only to the initial enrollment or initial application for excuse from school. Of course, if a child has been enrolled in school and has supplied a birth certificate, the parent should not be required to supply an additional certificate should the parent later choose to provide alternative instruction pursuant to SDCL 13-27-3.

There appears to be some confusion regarding what a school district is required to do when it does not have the required birth certificate. I am informed that some schools have attempted to expel the children from school, and some have referred the matter to my Office for prosecution, while others have informed the State Superintendent of Education.  SDCL 13-27-3.3 is quite clear. The local public or nonpublic school superintendent is required to  "report to the state's attorney the name and address of any child for whom the school does not have a copy of a certified birth certificate." The state's attorney, in exercise of his prosecutorial discretion, will then determine whether a prosecution under SDCL 13-27-3.1 should be commenced. I encourage school superintendents, when reporting to state's attorneys, to include any relevant facts they may have in their possession about why the birth certificate has not been presented. These facts, together with the state's attorney's own investigation, will provide the basis for any decision regarding prosecution. Finally, when schools transfer school records to another school in this State, the copy of the birth certificate should be included in the records transferred to avoid the necessity of repeating the process.

My answer to your question is that birth certificates need be presented only for children who are newly enrolling in a school in this State or are applying for an excuse from school pursuant to SDCL 13-27-3 for a child who has not previously provided a birth certificate.

Sincerely,

Roger A. Tellinghuisen
Attorney General