STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 15, 1969

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

OFFICIAL OPINION NO. 69-81

Textbooks given or loaned to parochial schools prohibited

Dear Dr. Diedtrich:

I have your request for an official opinion of this office relative to the authority of the school board to expend school district funds to purchase textbooks to be loaned to parochial schools or to pupils enrolled in such schools for their use of such schools.

The specific questions are set out as follows:

1. May a school district board expend school district funds for the purchase of textbooks to be given or loaned to a parochial school operated within the school district?

2. May a school district board expend school district funds for the purchase of textbooks to be loaned to pupils for their use in a parochial school?

3. May a school district board loan textbooks which it has already purchased, to a parochial school or to a pupil to be used in a parochial school?

The answers to all questions are in the NEGATIVE.

For fifty years this office has at various times been called upon to issue opinions on the same questions and the answer has always been the same. It is deemed appropriate to cite a few of these opinions as being pertinent to the present situation.

The first opinion appears in 1919-1920 AGR 182. Citing the provisions of South Dakota's Constitution prohibiting tile expenditure of money or use of property for the benefit of any sectarian or religious society in Section 3, Article VI of the State Constitution and Section 16 of Article VIII of the Constitution, both of which sections will be hereinafter set out at length, and the case of Synod of Dakota v. State, 2 S.D. 366. It is stated in that opinion:

" ... it is emphatically my opinion that no school district within this slate can lawfully furnish free textbooks for the use of any parochial or private school."

In 1930-32 AGR 331 the facts set out that a parochial school had advised the local independent board of education that it did not have sufficient money to continue to operate and asked for $1,000 and free textbooks.

The Attorney General again quoted Section 16, Article VIII and concluded:

"It is my opinion that an appropriation of $1,000 to aid the parochial school at Ipswich, or the providing of free textbooks for such school from public funds would be clearly unlawful and that any member of the school board voting for the same would be liable for the amount in an action brought by any taxpayer of the district should such an appropriation be made."

Section 3, Article VI of the State Constitution provides:

"No money or property of the State shall be given or appropriated for the benefit of any sectarian or religious society or institution."

Section 16 of Article VIII of the State Constitution provides:

"No appropriation of lands, money or other property or credits to aid in any sectarian school shall ever be made by the state, or any county or' any municipality within the state ... and no sectarian instruction shall be allowed in any school or institution aided or supported by the state."

With reference to free textbooks, SDC 1939, Sec. 15.1706 (SDCL 13-34-7) provided in part as follows:

". . . and furnish the same to the pupils of such district free as now provided by law."

It was on this Code section that the case of Haas v. Independent School District, 9 N.W. 2d 707 was litigated.

In that case, the Supreme Court of South Dakota held:

". . . that it was neither the intent nor effect of SDC 15.1706 to empower or require public school corporations to furnish textbooks, either to pupils of private, sectarian, or parochial schools, or to any other person not actually enrolled in, and in attendance upon some school maintenance as a part of the public school system of this state."

It is interesting to note in the Haas case the constitutional question was not ruled upon a it was unnecessary for the Court to do so. Had the Court found that the intent of the Legislature was to provide textbooks for all students in the geographical area of the district, whether in the public or the parochial schools, then the constitutional question would have been ruled upon. It is obvious from other statements in the opinion that the Court would have ruled the statute unconstitutional.

It is recognized, however, that people and attitudes change and the economy of the state has changed. Also, legal problems in matters of education are not necessarily settled because such problems have been submitted to the Supreme Court for decision. The current questions have arisen because of the recent decision of the Supreme Court of the United States in Board of Education v. Allen, 382 U.S. 236, 20 L. Ed. 2d 1060, 188 S. Ct. 1923.

The question has been asked as to why it is constitutional and legal for the State of New York to provide free textbooks to parochial schools when that is not the case in the State of South Dakota, inasmuch as the Supreme Court of the United States has ruled such practice as constitutional.

The answer is that the State of New York has a different type of statute than does the State of South Dakota.

"New York Education Law," Section 701, as to pertinent parts, is as follows:

"In the several cities and school districts of the state, boards of education, trustees of such body or officers as perform the function of such boards, shall have the power and duty to purchase and to loan upon individual requests, to all children residing in such districts who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law textbooks.”

It will be necessary for the South Dakota Legislature to amend the present law to authorize the local school district boards to purchase and loan textbooks to the students of both the public and parochial schools in the area. Of course, such an act would be subject to review by the Court as to its constitutionality under the State Constitution. The Supreme Court's decision might in turn be appealed to the Supreme Court of the United States, or the question might be again litigated and the Supreme Court of South Dakota asked to reverse itself.

The present free textbook law is found in SDCL 1967 13·34·16 and provides:

"All books shall be furnished free to the students in the school districts." (Emphasis added.)

The statute with which the Court was concerned in the Haas case used the word "pupils." This is a distinction without a difference and raises the so-called "student benefit theory" insofar as any re-litigation of the question at this time is concerned. The South Dakota Court held that the statute applies only to students in the public school as distinguished from students in the geographical area of the school district. However, the possibility of the Supreme Court reversing itself on this point would seem to be extremely remote at this time. The "student benefit theory" is emphasized because the Supreme Court of New York in Board of Education v. Allen, 276 NYS 2d 234 based its decision on the fact that the free textbooks were for the benefit of the individual students rather than for the benefit of the parochial school.

In the meantime, I will find it necessary to adhere to the former Attorney General's opinions and to again reaffirm the opinion of the former Attorney General in 1930-32 AGR 331, a portion of which is quoted above, to the effect that any member of the school board voting to purchase textbooks for a parochial school would be liable for the amount in an action brought by any taxpayer of the district, should such an appropriation he made.

Respectfully submitted,

Gordon Mydland
Attorney General