South Dakota Attorney General

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OFFICIAL OPINION NO. 69-50, Authority of Commission for Elementary and Secondary Education

STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

June 12, 1969

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

OFFICIAL OPINION NO. 69-50

Authority of Commission for Elementary and Secondary Education

Dear Dr. Diedtrich:

Reference is made to your request for an official opinion on the authority of the State Commission for Elementary and Secondary Education, dated May 22, 1969.

In your request you state:

"Under the provisions of Chapter 38 of the 1967 Session Laws, does the State Commission on Elementary and Secondary Education have authority to:

"(1) Combine one or more common school districts or portions thereof with an independent school district to create a new school district entity?

"(2) Combine two or more common school districts or portions thereof with two or more independent school districts or portions thereof to create a new school district entity?

"(3) Combine two or more independent school districts or portions thereof to create a new school district entity?

"(4) Combine, attach and make any boundary change or adjustment of land area as may be deemed necessary of a common or of an independent school district with another independent school district which would not make any more or less existing independent school districts?"

All questions arc answered in the AFFIRMATIVE, provided the Slate Commission finds that such combination or combinations are necessary in order to bring said districts in compliance within the regulations and standards as set by the State Board of Education, on January 20, 1969.

Subsection 6 of SDC 1960 Supp. 15.0803 was amended by Chapter 38 of the

Session Laws of 1967 to read as follows:

"(6) Establish regulations and standards for approving proposed school districts;"

As to pertinent parts, Section 15.2005 SDC 1960 Supp., provides as follows:

"If any land area within the state has not become a part of an approved independent school district in accordance with the provisions of this Act on or before January 1, 1969, or to be effective on July 1, 1970, or if any boundary changes or adjustments of land area are necessary, the State Commission on Elementary and Secondary Education shall provide for a hearing for the residents of any land area so involved and shall by resolution take one of the following courses of action:

"(a) create an approved independent school district, or

"(b) combine, attach, and make any boundary change or adjustment of land area as may be deemed necessary, or

"(c) request additional information and study prior to taking any course of action under (a) or (b) above." (Emphasis added.)

With respect to combining districts as authorized by the regulations and standards promulgated by the Board, it is believed that such regulations with which the Commission is here concerned, are found in II sub-paragraph (A) through (E) which provides as follows:

"II. Each proposed school district shall be evaluated in terms of the following characteristics:

A. Proposed school districts shall be planned on a regional basis to insure that all territory will be included in an approved school district.

B. School districts shall contain a geographic area which includes one or more established communities which may be coordinated into an effective administrative unit. It may consist of a portion of one county or it may include area in two or more counties.

C. Each proposed school district shall include sufficient assessed valuation to support a reasonable portion of the total cost of the proposed educational program from local property tax revenues according to existing statutory limitations. Every effort should be made to reduce the disparity among school districts in relation to the taxable wealth behind each child.

D. School districts shall be of sufficient size in terms of area, general population, assessed valuation and pupils to utilize financial resources in the most effective manner, to insure competent lay and professional leadership and to encourage a high level of citizen participation and communication.

E. All proposed districts shall consist of adjoining territory. Such adjoining portions of a school district should have a common boundary of not less than eighty (80) rods."

Considerable latitude is given to the Commission by these regulations and standards. The Commission's authority is only limited by the necessity for combining, attaching, making boundary changes, or adjustments of the land area as would be indicated by the particular situation in order to carry out the intent of the legislation. However, the necessity for such action in any case must be determined by the Commission on the particular facts and circumstances.

In AGR 1967-68, page 185, the Attorney General issued the following opinion:

"It is my opinion that SDC 1960 Supp. 15.0803 as amended by Chapter 38, Session Laws of 1967, authorizes the State Board of Education to establish regulations and standards for approving proposed school districts to be created subsequent to July 1, 1967.”It is my opinion that SDC 1960 Supp. 15.2005, as amended by Chapter 38, Session Laws of 1967, authorizes the State Board of Education to establish standards that all independent school districts must meet by July 1, 1970, regardless of when such independent school districts were created and failure to meet such standards gives the State Commission on Elementary and Secondary Education the authority to proceed under subsections (a), (b), and (c) of subsection (1) of SDC 1960 Supp. 15.2005 as last amended by Chapter 38, Session Laws of 1967.

"In answer to your specific question, it is my opinion that any independent school which fails to offer an accredited school program and meet the standards adopted by the State Board of Education for an independent school district will be subject to action by the State Commission on Elementary and Secondary Education…"