STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

June 11, 1973

Don Barnhart
State Superintendent of Public Instruction
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 73-15

Obligation of a school district in relation to special education for exceptional children.

Dear Dr. Barnhart:

Based on your recent request for an opinion relating to special education programs, you have requested an opinion on the following questions:

1. With reference to SDCL 13-37-14.1, what constitutes "appropriat eeducation program?"

2. With reference to SDCL 13-37-8.7, may a school district: contract with a private school for costs which would exceed the legal rate of tuition for special education purposes?

3. With reference to SDCL 13-37-16, may the school district expend general fund moneys for special education programs?

I t shall be the responsibility of the governing board of a school district to provide' all of its resident exceptional children with an appropriate educational program. The placement of an exceptional child in an appropriate educational program which is operated jointly with other school districts shall constitute the provision of an appropriate educational program. The placement of an exceptional child with the approval of the department into an appropriate educational program in cases where it is unreasonable for the resident school district to provide the program shall constitute the provision of an appropriate educational program for that exceptional child.

SDCL 13-37-14 reads as follows:

The superintendent is hereby authorized and directed to implement a special education program for the state under the supervision of the division and to prepare for the consideration and approval of the board such rules and regulations as may be consistent with this chapter and which in his judgment are necessary to accomplish its purposes. For the purposes of this chapter, administration, individual auxiliary services, and state aid for special education are to be treated as separate programs and shall be specifically delineated as such in the department's budget request for state funds

With reference to your Question #1, it is my opinion that based on the above statute, it would appear that the Superintendent of Public Instruction has authority to adopt rules and regulations subject to the approval of the State Board of Education, and it is my opinion that such authority is sufficient to define by rule and regulation what constitutes "appropriate educational program." It is my opinion that until such time as such a definition is adopted by rule and regulation, the determination as to what does constitute an "appropriate educational program" is for the local school boards to so determine.

SDCL 13-37-8.7 reads as follows:

Tuition for exceptional children who are assigned by the division to attend a private school or institution for special education shall be at the legal rate of tuition as provided by state law for secondary schools regardless of the classification of an exceptional child. Such tuition shall be paid from the special education fund of the district wherein the exceptional child has school residence.

With reference to Question #2, it is my opinion that the above statute fixes the rate of tuition to private schools and that there is no authority for contracting for any additional rate of tuition for special education purposes.

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 of all exceptional children who reside within the district pursuant to the provisions of § §13-37-8.1 to 13-37-8.10, inclusive.

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 redeem all outstanding warrants against such fund. The mill levy for such fund shall be limited as provided by law.

With reference to Question #3, it is generally held that where special funds are established by the Legislature such funds must be administered separately and separate accounting made for each fund. The general rule is that money raised for a special fund must be used for the specific purpose far which it was raised and money so collected can not be diverted to another use unless the statutes so provide (See SDCL 13-16-26). As to the general fund, it is the general rule that such a fund may be used for general school purposes unless restricted by specific statutes. In answer to your specific Question #3, it is my opinion that the answer is, YES.

Respectfully submitted,

Kermit A. Sande
Attorney General