STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
October 22, 1971
Dr. Don Barnhart
State Superintendent
of Public Instruction
Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 71-49
School attendance and compulsory membership.
Dear Dr. Barnhart:
You have requested an official opinion as follows:
13-27-1 Every person having under his control a child of the age of seven years and not exceeding the age of sixteen years, shall annually cause such child to regularly attend some public or private day school for the entire term during which the public school in the district in which such person resides, or the school to which such child is assigned to attend, is in session, until the child shall have completed the first eight grades of the regular common school course, or shall have reached the age of sixteen years, unless excused as hereinafter provided.
13-27-1 School boards of all school districts shall have authority to excuse a child from school attendance for the reasons set forth in §§ 13-27-3 to 13-27-6.
13-27-3 A child may be excused from school attendance, pursuant to § 13-27-2, because the child is otherwise instructed by a competent person for a like period of time in the branches commonly taught in the public schools. All such instructions shall be given so as to lead to a mastery of the English language. The state superintendent shall be the judge as to the competency of such instruction and the child so instructed shall take such examination as the state superintendent may require, and reports covering his work shall be filed with the state superintendent in such form and as often as that officer may require.
13-27-4 A child may be excused from school attendance pursuant to §13-27-2, because the physical or mental condition of the child is such as to render his attendance at school unsafe, impracticable, or harmful either to such child or to others. The existence of such condition is evidenced by the certificate of a reputable physician, dentist, or other persons who may lawfully treat sickness or disease under the laws of the state, or by the certificate of a psychologist employed by the state commission for the mentally retarded.
13-27-5 A child may be excused from school attendance, pursuant to § 13-27-2, because the child, as declared by a reputable physician, is mentally or physically defective and cannot receive proper instruction in the common schools, in which case, suitable provision shall be made for the instruction and training of such child by a private instructor for an institution adapted to the instruction and training of such defectives.
In the event that a blind, deaf, or mentally retarded child is not given such instruction, it shall be the duty of the truancy officer to institute action in the county court for the commitment of such child to the state institution maintained for such defective, unless such child be excused from attendance by the superintendent of such institution.
13-27-6 A child may be excused from school attendance, pursuant to §13-27-2, because of serious illness in his immediate family, making his presence at home an actual necessity, or his presence in school a menace to the health of other pupils.
13-27-7 All applications for excuse from school attendance shall be in writing, and if granted, a certificate shall be issued by the president of the school board having jurisdiction over the district in which the child resides, stating the reason for such excuse and the period for which it is issued.
Although the above statutes make reference to excuses from school attendance, it is generally understood that these statutes refer to excuses from membership (enrollment) in a recognized school and that excuses from attendance for pupils who are a member (enrolled) in a recognized school are not subject to the requirement of these statutes. Based on these statutes and the general observations cited above, it is requested that you issue an official opinion on the following questions:
1. Do the above cited statutes apply only to excuses for pupils of compulsory attendance age from membership (enrollment) in a recognized school?
2. What are the statutory requirements for excusing a pupil who is a member (enrolled) of a recognized school from attending regularly scheduled classes for the purpose of taking an educational trip of limited duration?
3. If there are no statutory requirements, may the school board adopt a policy for making such excuses?
4. If a policy is adopted by the school board for excuses for such educational trips, are such pupils who are not subject to the compulsory attendance statutes subject to such board policy?
5. When such excuses are granted, must they be in writing?
With reference to your question No. 1, the South Dakota Dictionary of Educational Terms for Elementary and Secondary Education, Bulletin 10-4 (1970) adopted by the State Board of Education defines the word membership in part as follows:
A person is a member of a school from the date he presents himself at school and is placed on the current roll until he permanently leaves or withdraws from such school during a school term.
It is my opinion that the above cited statutes apply only to excuses for pupils of compulsory attendance age from membership in a recognized school as set forth in the above definition.
In answer to your question No.2, I am unaware of any specific statute applicable to the question you have asked.
In answer to your question No.3, the South Dakota Dictionary of Educational Terms for Elementary and Secondary Education, Bulletin 10-4 (1970) adopted by the State Board of Education defines attendance, day of as follows:
A day in which an enrolled person is present for the minimum length of time that school is in session for a person of like classification under the guidance and direction of a teacher. A day of attendance also includes those days when an enrolled person is away from the school site on an educational trip authorized or approved by the teacher, principal or superintendent who has final jurisdiction to authorize or approve such educational trip.
In addition to constitutional and statutory provisions, admission and attendance at schools are governed by rules and regulations of state and local board of education. Local boards are invested with extensive authority in educational matters. School districts through their agents, officers and employees must regulate the conduct of pupils if an orderly process of education is to be achieved. The authority to formulate rules, regulations, and policies is by implication inherent in the educational enterprise and includes the authority to enforce them. It is my opinion that the answer to your question No.3 is in the AFFIRMATIVE.
With reference to your question No.4, it has been said that the right to attend a public school is not a private right but a privilege held in common by all members of the community within specified ages. It is a privilege conditioned on the acceptance of certain obligations which have been spelled out by the statutes and the courts over a period of time. The purpose of establishing and supporting public schools and requiring school attendance is not solely to benefit the child or the parent, it is also for the well being and safety of the state itself. Its major purpose is the benefit of all society. Education is a state function under the control of the state legislature. School attendance is a privilege which imposes obligations on the child and his parent. To claim this privilege, a child must be willing to abide by the reasonable rules and regulations of the school district.
In answer to your specific question No.4, it is my opinion that any child who becomes a member of a school, even though he may be over the compulsory attendance age requirement, subjects himself to the same rules, regulations and requirements of those students who are within the compulsory age requirements.
In answer to your question No.5, it is my opinion that the policy of the school board may require that such excuses be in writing and it is also my opinion that it would be desirable that the request for such excuse be in writing and that such a request be approved by an authorized school official.
Respectfully submitted,
Gordon Mydland
Attorney General
