December 18, 1981

Ms. Lynn A. Moran 
Custer County State's Attorney 
Custer, South Dakota 57730

Official Opinion No. 81-49

Corporal punishment in state institution

Dear Ms. Moran:

Due to questions facing the Human Rights Committee of the Custer State Hospital in your county you have submitted the following questions for my opinion:

QUESTIONS: 

1.  Is Custer State Hospital an educational facility to which SDCL 13-32-2 applies? 

2.  Would supervisors and teachers at Custer State Hospital be allowed to use physical punishment on the 'students' who reside at Custer State Hospital and who are severely and profoundly physically and mentally handicapped?

IN RE QUESTION NO. 1:

SDCL 13-32-2 provides: 

Superintendents, principals, supervisors, and teachers, shall have authority, to administer such physical punishment on an insubordinate or disobedient student that is reasonable and necessary for supervisory control over the student.  Like authority over students is given any person delegated to supervise children who have been authorized to attend a school function away from their school premises and to school bus drivers while students are riding, boarding, or leaving the buses.

Reference to the 1981-82 Directory of South Dakota Schools promulgated by the State Superintendent of the Division of Elementary and Secondary Education reveals that the Custer State Hospital has been approved as a special education  facility for elementary and secondary children in need of prolonged educational assistance.  While SDCL ch. 13-32 is clearly directed towards school boards and school districts, it would be anomalous to say that children in the Custer facility are not students.  SDCL ch. 13-37 grants a right to all resident children who because of their physical or mental condition cannot be adequately educated through the usual facilities and services in school districts to receive appropriate special education.  In addition, SDCL 27B-3-7 appears to require the administrator of the Custer facility to employ instructors meeting the qualifications required of teachers in the public schools reinforcing the idea that the facility is educational in nature.  Accordingly, the answer to Question No. 1 is yes.

IN RE QUESTION NO. 2:

Reference to SDCL 13-32-2 reveals that physical punishment may be imposed upon 'insubordinate or disobedient' students and that physical punishment must be 'reasonable and necessary for supervisory control over the student.' Research into both dictionary and legal definitions of insubordination and disobedience reveals that in virtually all cases the 'disobedience' or 'insubordination' is a willful act.  Given the extremely low level of intellectual function available to students in the Custer facility, it is  extremely doubtful that many of these children are capable of forming the type of intent required for willful disobedience or insubordination.  Clearly, it would be abusive to administer physical punishment on children who do not make intentional decisions or are not capable of controlling their own acts.

Respectfully submitted,

Mark V. Meierhenry
Attorney General