STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 27, 1971

Dr. Don Barnhart
State Superintendent of Public Instruction
State Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 71-30

Special education includes learning disabilities

Dear Dr. Barnhart:

You have requested an official opinion as follows:

SDCL 13-15-1.2 reads as follows:

A school district is further hereby authorized to enter into contracts with nonprofit private schools and institutions for special educational services for children of the school district who have learning disabilities provided that such school or educational services are approved by the state board of education for assignment of such children on an individual basis by the department of public instruction and the instructors of such school meet the certification requirements of the state board of education.

The South Dakota Dictionary of Educational Terms for Elementary and Secondary Education (Bulletin 104-1970) defines specific learning disabilities as follows:

Children with specific learning disabilities exhibit a disorder in one or more of the basic psychological processes involved in understanding or in using spoken or written languages. These may be manifested in disorders of listening, thinking, talking, reading, writing, spelling, or arithmetic. They include conditions which have been referred to as peceptual handicaps, brain injury, minimal brain disfunction, dyslexia, developmental aphasia, etc. They do NOT include learning problems which are due primarily to visual, hearing, or motor handicaps; to mental retardation, emotional disturbance, or to environmental disadvantage. (First Annual Report-National Advisory Committee of Handicapped Children, January 31, 1968, p. 34, U.S. Department of Health, Education and Welfare, Office of Education) See section 13-15-1.2 SDCL as amended by Ch. 53, 1969.

SDCL 13-37 is the statutory authority for providing special education for exceptional children.

It is requested that you issue an official opinion on the following question-Does the statute providing for special education (SDCL 13-37) include learning disabilities?

SDCL 13-37-1 reads as follows:

As used in this chapter, unless the context otherwise requires, "exceptional children" means all children under the age of twenty-one years who are residents of the State of South Dakota and who, because of their physical or mental conditions, are not adequately provided for through the usual facilities and services of the public school.

SDCL 13-37-2 reads as follows:

As used in this chapter, unless the con text otherwise requires, "special education" means classroom services and auxiliary services provided exceptional children pursuant to the provisions of this chapter and shall include school instruction conforming as nearly as possible to the established state course of study under duly qualified special education teachers or other necessary services, or both, to the extent that the exceptional child is capable of profiting by specialized instruction.

SDCL 13-37-4 reads as follows:

In order for an exceptional child to receive the benefits provided herein, the nature of the handicap must be evidenced by a certificate of a qualified person or physician as defined by the board and by such in formation furnished to the division.

Based on the above cited statutes, it is my opinion that the answer to your question is in the AFFIRMATIVE.

Respectfully submitted,

Gordon Mydland
Attorney General