STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

April 23, 1969

Dr. Gordon Diedtrich
State Superintendent of Public Instruction
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-40

State aid to education. Effect of hiring a single unqualified high school teacher SDC 15.2246 as amended by Ch. 44, Laws of 1968

Dear Dr. Diedtrich:

You have requested an official opinion based on this factual situation:

"An independent school district hires one unqualified, or improperly qualified, teacher for its high school. All the remaining high school teachers and all elementary school teachers are properly qualified."

You then submit these questions:

"1. Because of this single unqualified teacher, does such independent school district forfeit all state aid distributable under the Foundation program?

"2. Would the independent school district only forfeit its high school support and be eligible to receive elementary school support from state moneys?"

You have not favored us with a showing of the number of children in such school district, the number of teachers employed, the number of classroom units employed, or any of those matters which are requisite in order for the computers to determine state aid. You have presented but a single legal question.

The Minimum Foundation Program is, as you know, a most complicated formula. Basically, its only purpose is to distribute state moneys to the various school systems eligible thereto for the benefit of the children who are receiving their education in public schools. Incidentally, such state aid may benefit the teachers in such public schools by making more money available for salaries. This benefit, however, certainly is secondary as our Constitution requires that the Legislature must adopt all suitable means to secure to the people advantages and opportunities of education. (Article VIII Section 1 of the South Dakota Constitution.)

The Legislature has satisfied the constitutional mandate when it has prescribed for the districting of areas of the state into school districts and granted the local school districts the authority to raise revenue by taxation to support such schools. There is no constitutional duty for the Legislature to provide state aid. However, when it does authorize state aid to the local school districts by means of payments from state moneys, such restrictions as the Legislature may make upon such distributions must be fairly and conscientiously construed.

Our Minimum Foundation Program, which by virtue of Chapter 44 of the Session Laws of 1968, can only be determined by computer and not by man, basically makes the distribution of state aid by two separate formulas. Until the changes in such program made by the 1969 Legislature, the greatest part of such state aid was distributed by the "flat grant" formula; only two million of such state aid was distributed under the "equalization formula." While the "flat grant" formula is based upon "classroom units," such fundamentally is based upon the number of students in attendance in each particular school district, eligible for flat grant aid. The equalization portion of the formula is based upon the local effort of such school district. Except for the limitation upon classroom units, the only place in either of such formulas that the education of a teacher is considered is the payment of a hundred dollar bonus for each school district which employs the holder of a four year elementary certificate in the lower or elementary grades.

In the Minimum Foundation Program, to determine "flat grant" payments a distinction is made between the elementary and secondary grades. An independent school district must offer elementary and secondary education. A common school district can offer only elementary education. A superimposed high school district can offer only a secondary education.

I make this observation because the provision of SDC 1960 Supp. 15.2246 (5) (a) (4), as amended, is the only grounds for forfeiting all of the high school aid-and a realistic, strict construction of its provisions would require a rejection of all state aid and not require the rejection of "high school" aid and a retention of "grade school" aid.

In view of the beneficial purpose of state aid to local school districts I cannot attribute the intent of the Legislature to disallow all state aid to any particular school system employing more than one teacher in its high school because due to error or oversight, the school board in its high school teaching staff employed but a single unqualified teacher. This attributes to tile Legislature a sense of retribution upon the children who are the major beneficiaries of the legislative bounty rather than paternal benefaction for the youth of our state.

The final paragraph of SDC 1960 Supp. 15.2246 (4) (a), in my estimation furnishes the full amount of penalty the Legislature intended for the employment of one such unqualified teacher of many. This paragraph provides that no district shall he entitled to more classroom units than the number of full time positions filled by certified teachers. Certainly, no classroom units can be claimed by such district for this unqualified teacher. The classroom units requisite to determine the "flat grant" for high school purposes must be measured and limited by only the full time qualified, certified teachers employed in the high school in question.

Subject to the limitation pointed out in the paragraph above, it is my opinion that both questions you have submitted be answered NO.

Respectfully submitted,

Gordon Mydland
Attorney General