STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
October 16, 1975
Representative Leslie J. Kleven
Box 779
Sturgis, South Dakota 57785
OFFICIAL OPINION NO. 75-174
Conflict of proposed federal regulations part 403 to implement P.L. 93-638 and South Dakota statutes
Dear Representative Kleven:
You have submitted the following factual situation:
Proposed federal regulations (part 403) to implement P.L. 93-638 contain in part, the following:
§ 403.15 Establishment of Indian Education Committee.
(a) When a school district to be affected by a contract(s) for the education of Indians pursuant to this Part has a local school board composed of a majority of Indians, that school board will serve in place of an Indian Education Committee for the purposes of this Part. The school board shall have the duties and powers given in § 403.16 and shall have approval authority over the programs to be contracted as given in § 403.17.
(b) When a school district to be affected by a contract(s) for the education of Indians pursuant to this Part has a local school board not composed of a majority of Indians, the tribal governing body(s) of the Indian tribe(s) affected by the contract(s) under this Part shall specify one of the following entities to serve as the Indian Education Committee for the purpose of this Part:
(1) An Indian Education Committee to be elected from among the parents (including persons acting in loco parentis except school administrators or officials) of eligible Indian students enrolled in the school(s) affected by a contract(s) under this Part; or
(2) A local Indian committee established pursuant to section 305(b) (2) (B) (ii) of the Act of January 23, 1972 (86 Stat. 235) and existing prior to January 4, 1975; or
(3) An Indian advisory school board or Indian Education Committee established pursuant to the Johnson-O'Malley Act and existing prior to January 4, 1975.
(c) When the local school board is not composed of a majority of Indians and the tribal governing body(s) of the Indian tribe(s) affected by a contract(s) under this Part determine which of the entities provided for in paragraph (b) of this section is to serve as the Indian Education Committee for the purpose of this Part, it shall notify the Area Director of such determination by January 15 preceding the school year for which the contract will be let.
(d) The Indian Education Committee established under paragraph (b) of this section and its members shall establish procedures under which the Committee shall serve. Such procedures shall be set forth in the Committee's organizational documents and by-laws. Each Committee shall file a copy of its organizational documents and bylaws with the appropriate Area Director, together with a list of its officers and members as soon as practicable after the Committee is organized.
(e) The existence of an Indian Education Committee shall not limit the continuing participation of the rest of the Indian community in all aspects of programs contracted under this part.
§403.16 Powers and duties of Indian Education Committee.
(a) Consistent with the purpose of the Indian Education Committee, each such Committee shall be vested with the authority to:
(1) Participate fully in the planning, development, implementation, and evaluation of all programs, including both supplemental and operational support, conducted under a contract or contracts pursuant to this Part. Such participation shall include further authority to:
(i) Recommend curricula, including texts, materials, and teaching methods to be used in the contracted program or programs.
(ii) Approve budget preparation and execution.
(iii) Recommend criteria for employment in the program.
(iv) Nominate a reasonable number of qualified prospective educational programmatic staff members from which the contractor would be required to select.
(v) Evaluate staff performance and program results and recommend appropriate action to the contractor.
(2) Approve and disapprove all programs to be contracted under this Part. All programs contracted pursuant to this Part shall require the prior approval of the appropriate Indian Education Committee.
(3) Secure a copy of the negotiated contract(s) which include the program(s) approved by the Indian Education Committee.
(4) Recommend to the appropriate Bureau contracting officer cancellation of a contract(s) which contains the program(s) approved by the Indian Education Committee if the contractor fails to permit such Committee to exercise its powers and duties as specified by this section.
(b) The organizational papers and by-laws of the Indian Education Committee may include additional powers and duties which would permit the Committee to:
(1) Participate in negotiations concerning all contracts under this Part.
(2) Make an annual assessment of the learning needs of Indian children in the community affected.
(3) Have access to all reports, evaluations, surveys, and other program and budget related documents determined necessary by the Committee to carry out its responsibilities, subject only to the provisions of § 403.50.
(4) Request periodic reports and evaluations regarding the Indian education program.
(5) Hear grievances related to programs in the education plan.
(6) Meet regularly with the professional staff serving Indian children and with the local education agency.
(7) Hold committee meetings on a regular basis which are open to the public.
(8) Have such additional powers as are consistent with these regulations.
(c) A local school board composed of a majority of Indians and serving in place of the Indian Education Committee as prescribed in § 403.15(a) shall have the same powers and duties as given in this section.
§403.17 Programs approved by Indian Education Committee.
(a) All programs contracted under this Part shall:
(1) Be developed and approved in full compliance with the powers and duties of the Indian Education Committee as set out in § 403.16 and as may be contained in the Committee's organizational documents and by-laws.
(2) Be included as a part of the education plan provided for in §403.14.
(b) No program contracted pursuant to this Part shall be changed from the time of its original approval by the Indian Education Committee to the end of the contract period without the prior approval, in writing, of the Committee.
(c) Programs developed or approved by the Indian Education Committee pursuant to this Part may, at the option of such Committee, include funds for the performance of Committee duties, including the following:
(1) Members' attendance at regular and special meetings, workshops and training sessions, as the Committee deems appropriate.
(2) Such other reasonable expenses incurred by the Committee in performing its primary duties, including the planning, development, implementation and evaluation of the program.
(d) A local school board composed of a majority of Indians and serving in place of the Indian Education Committee as prescribed in § 403 .15(a) shall perform all the functions that the Committee is required or authorized to perform in this section.
§ 403.32 Pro rata requirement.
All monies provided by a contract pursuant to this Part, shall be expended only for the benefit of eligible Indian students. Where students other than eligible Indian students participate in programs contracted under this Part, money expended under such contract shall be prorated to cover the participation of only the eligible Indian students, except where the participation of non-eligible students is so incidental as to be de minimus.
§403.46 Indian preference.
(a) Any contract made by the Bureau with a State, school district or Indian corporation shall provide that the contractor shall, to the greatest extent feasible, give preference in and opportunities for employment and training to Indians.
(b) Any contract made by the Bureau with a State, school district or Indian corporation shall provide that the contract shall, to the greatest extent feasible, give preference in the award of subcontracts to Indian organizations and Indian-owned economic enterprises.
(c) All subcontractors employed by the contractor shall, to the extent possible, give preference to Indians for employment and training and shall be required to include in their bid submission a plan to achieve maximum use of Indian personnel.
§403.53 State school laws.
In those States where Public Law 83-280, 18 U.S.C. 1162 and 28 U.S.C. 1360 do not confer civil jurisdiction, State employees may be permitted to enter upon Indian tribal lands, reservations, or allotments if the duly-constituted governing body of the tribe adopts a resolution of consent for the following purposes:
(a) Inspecting school conditions in the public schools located on Indian tribal lands, reservations, or allotments.
(b) Enforcing State compulsory school attendance laws against Indian children, parents or persons standing in loco parentis.
You have requested an opinion on the following question:
Do the proposed federal regulations (part 403) to implement P.L. 93-638 conflict with South Dakota statutes?
Section 1, Article VIII of the South Dakota Constitution reads as follows:
The stability of a republican form of government depending on the morality and intelligence of the people, it shall be the duty of the Legislature to establish and maintain a general and uniform system of public schools wherein tuition shall be without charge, and equally open to all; and to adopt all suitable means to secure to the people the advantages and opportunities of education.
SDCL 13-1-12 reads as follows:
Policies for school classification and accreditation-Ensuring performance of statutory powers and duties.- The state board of education shall have the power and duty to establish rules and policies for execution by the executive officer of the state board as are necessary to:
(1) Establish standards for classifying, approving and accrediting elementary, secondary, adult education, kindergarten, primary, and summer schools, both public and nonpublic;
(2) Ensure the performance of such powers and duties as assigned to it by statute.
SDCL 13-1-25 reads as follows:
General supervision of elementary and secondary schools.- Subject to policies established by the state board, the superintendent of elementary and secondary education shall have general supervision over all elementary and secondary schools in the state including adult education, kindergarten, nursery schools, and summer schools, and shall perform such other duties and have such other powers as set forth in this title and as elsewhere provided by law.
SDCL 13-3-25 reads as follows:
Supervisory control over school buildings and sanitary conditions.- The superintendent of elementary and secondary education shall have the power to exercise a supervisory control over the acts and doings of the school board pertaining to the management and conduct of such schools by said board and of the maintenance and repair of facilities, and the maintenance of sanitary conditions in and about the same, and to direct repairs and the correcting of the unsanitary conditions when needed.
SDCL 13-3-47 reads as follows:
Classification and accreditation of schools.-It shall be the duty of the superintendent of elementary and secondary education to classify, approve, or accredit elementary, secondary, adult education, kindergarten, nursery, and summer schools, both public and nonpublic, under the rules as established by the state board of education.
SDCL 13-5-1 reads as follows:
School districts defined-General corporate and proprietary powers.-Any territory heretofore or hereafter organized for the express purpose of operating not less than a twelve-year school program and governed by a duly elected school board is defined to be a school district. It may sue and be sued, contract and be contracted with, purchase, hold, and use personal and real property for school purposes, and sell and dispose of the same.
SDCL 13-8-1 reads as follows:
School board defined.- The school board is an elected body created according to the laws of the state to serve as the governing board of a school district for the purpose of organizing, maintaining, and locating schools and for providing educational opportunities and services for all citizens residing within the school district.
SDCL 13-8-39 reads as follows:
Management of schools by board-General powers.-As provided and limited by law, the school board shall have general charge, direction, and management of the schools of the district and control and care of all property belonging to it and shall have power to levy taxes, borrow money, employ any necessary personnel, to lease real and personal property, carry liability and other insurance, purchase all necessary books and equipment and purchase real property and erect necessary buildings for the operation of such schools.
SDCL 13-10-2 reads as follows:
General power of school boards to employ personnel.- The school board shall have the power to employ personnel deemed necessary by the board and to define the duties and fix the compensation of each.
SDCL 13-11-2 reads as follows:
Adoption of annual school budget-Publication-Cash flow-Levy-Changes in budget.- The school board shall cause a proposed budget for the next fiscal year to be prepared according to the budgeting standards prescribed by the auditor general for consideration at the regular meeting in the month of May. The proposed budget shall be published in the designated official newspaper not later than July fifteenth together with a notice of hearing on the budget, which hearing shall be held before August first. Before September first every school board shall approve a budget for the anticipated obligations of each fund for the school fiscal year. Such budget may include an amount to provide cash flow funding according to guidelines prescribed by the auditor general. By resolution the school board shall adopt a levy in dollars sufficient to meet the school budget for all the funds. Any changes in the proposed budget incorporated into the final budget shall be published in the minutes of the first meeting of the board after the final adoption of the budget.
SDCL 13-15-2 reads as follows:
State board contracts for education of Indian children-Receipt and expenditure of federal grants.- The state board of education is hereby authorized to enter into contracts with the United States department of the interior for the education of Indian children, to receive grants of federal funds for that purpose, and to expend such funds under such rules as the state board of education may establish.
SDCL 13-27-1 reads as follows:
Responsibility of person controlling child-Ages of compulsory attendance-Entire school term.-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 nonpublic elementary 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, or shall have reached the age of sixteen years, unless excused as hereinafter provided.
SDCL 13-27-20 reads as follows:
Complaints before circuit court against persons responsible for truancy-Contents of complaint- Verification.-It shall be the duty of all truancy officers to make and file complaints, and any teacher, school officer, or any citizen may make and file such complaint, before a circuit court against any person having control of a child of compulsory school age who is not attending school or whose attendance is irregular, or who has been guilty of habitual truancy; and such complaint shall state the name, if known, of the father or mother of such child or the survivor of them, and if the father or mother is not living or cannot be found in the county or if their names cannot be ascertained, then the name of the legal guardian, and if there be none, then the person who in the judgment of the complainant is responsible for the control of the child. Such complaint shall be verified by oath upon belief of the complainant.
SDCL 13-43-26 reads as follows:
Official teacher evaluation policy-Adoption by school boards.-Each school board shall adopt official standards, criteria and procedures for the evaluation of the professional performance of members of the teaching profession employed in the school district. A copy of the school board's official evaluation policy shall be forwarded to the division of elementary and secondary education. If a school board has failed to adopt and file its official evaluation policy, the evaluation policy promulgated by the commission shall become the school board's policy.
SDCL 20-13-22 reads as follows:
Educational institutions' unfair or discriminatory practices-Exemption for religious institution.-It shall be an unfair or discriminatory practice for any educational institution:
(1) To discriminate in any manner in the full utilization of or benefit from any educational institution, or the services rendered thereby to any individual because of race, color, creed, religion, sex, ancestry, or national origin.
(2) To include, expel, limit or otherwise discriminate against an individual seeking admission as a student, or an individual enrolled as a student because of race, color, creed, religion, sex, ancestry or national origin.
(3) To make or use a written or oral inquiry, or form of application for admission that elicits or attempt to elict information, or to make or keep a record, concerning the race, color, creed, religion, ancestry or national origin of an applicant for admission except as may be permitted by regulations of the commission.
This section shall not apply to any bona fide religious institution with respect to any qualification based on religion which such qualification is related to a bona fide religious purpose.
In South Dakota, the Constitution places the duty on the Legislature to establish and maintain a general and uniform system of public schools; the Legislature has therefore enacted numerous statutes relating to education, a few of which are set forth above. In answer to your specific question, it is my opinion that there is conflict between certain proposed federal regulations (part 403) to implement P. L. 93-638 and the statutes cited above and other statutes not cited herein.
Further, there are serious questions raised with the right of federal bureaucratic officials to change, not by law, but by regulations, the affirmative statutes of the State of South Dakota. As elected and duly appointed officials of the State of South Dakota, school board members, the Office of the Governor and myself are bound to give precedence to carrying out the legal mandates of our state law.
Respectfully submitted,
William Janklow
Attorney General
WJJ:GH:dk
