October 9, 1981
Mr. Robert A. Fallon
Superintendent of Schools
Rapid City Area School District #51-4
809 South Street
Rapid City, South Dakota 57701
Official Opinion No. 81-35
Mandatory testing pursuant to SDCL 13-27-3
Dear Superintendent Fallon:
You have requested an opinion relating to the mandatory testing provisions of SDCL 13-27-3. This statute provides:
A child shall be excused from school attendance, pursuant to § 13-27-2, because the child is otherwise provided with competent alternative instruction for a like period of time, as in the public schools, in the basic skills of language arts and mathematics. The parent or guardian of the child shall identify in the application the place where the child shall be instructed and the individual or individuals who shall so instruct the child. Individuals so instructing shall not be required to be certified. No single individual so instructing shall instruct more than twenty-two children. All such instructions shall be given so as to lead to a mastery of the English language. The child so instructed shall annually take a nationally standardized achievement test of the basic skills, such test to be the same as the test designated to be used in the public school district where the child is instructed. The superintendent of elementary and secondary education or his designee may exercise the right of visitation twice in any school year to observe the child's alternative instruction. Should it become necessary for the child to return to public school the school board where the child resides may give an achievement test to determine the child's level of accomplishment. Placement in the public school shall be at the child's level of demonstrated proficiency. (Emphasis supplied.)
Based on the statute you have asked the following questions:
QUESTIONS:
1. Who is responsible to insure that the required testing is performed?
2. Who is responsible to plan, coordinate, and administer the required testing program?
3. Who is responsible for the costs of the required testing procedure?
4. a) Are testing results for each child totally the property of the child or the child's parents or does the Board of the public school district within which the child resides have equal access to the testing results?
b) What access does the staff of the alternative educational program have to the results of the required student testing program?
c) What is the responsibility of the Board of the public school district within which the child resides subsequent to analyzing testing results (this assumes access), if they believe that the educational needs of a child are not being adequately met by the alternative educational program?
IN RE QUESTIONS NO. 1:
Reference to H.B. 1171 as passed by the 1981 South Dakota Legislature reveals that the purpose of this legislative enactment is to provide a method for church groups and others to offer educational services without being subjected to certification and accreditation requirements imposed upon private, accredited schools pursuant to SDCL ch. 13-4. All of H.B. 1171 and the portions of SDCL ch. 13-27 amended by that bill direct themselves to the relationship between the public school district and the parents of school-aged children. It would be entirely inconsistent with the legislative intent expressed in that bill to conclude that the alternative instruction program could be required to insure that the testing is performed. The answer to Question 1 is that the public school district where the child is receiving the alternative instruction is required to insure that the testing is performed.
IN RE QUESTION NO. 2:
For the same reasons expressed in the answer to Question No. 1 the answer to Question No. 2 is that the public school district where the child is instructed is required to plan, coordinate, and administer the required mandatory tests. In addition, since the State must be certain that children are being instructed, and since one of the methods used to determine this is through the mandatory test, it follows that the State must know that the work on the test has been done by the child. This can best be accomplished if only the public school district administers the test.
IN RE QUESTION NO. 3:
Since, as discussed above, the public school district is required to administer and to insure that the testing is performed, it is apparent that this becomes a school service and as such is part of the public school district's responsibility to provide free school services to children in this state. Accordingly, the answer to Question No. 3 is that the public school district is responsible for the costs of the mandatory tests and the administration of same.
IN RE QUESTION NO. 4a:
Since the public school district provides and administers the tests, the results of these tests constitute school records within the meaning of the Family Educational Rights and Privacy Act. Under the terms of that Act, the child's parents, the eighteen-year-old child, and those persons identified by the school board as having legitimate educational interests have access to all school records including results of mandatory annual achievement tests administered pursuant to SDCL 13-27-3.
IN RE QUESTION NO. 4b:
Assuming that school policy does not identify staff of alternative instructional programs as 'persons having legitimate educational interests for access to school records,' the staff of the alternative instructional program could have access to the child's school records only with the written consent of the parent or the eighteen-year-old child. Of course, the staff of the alternative instructional program may receive copies of school records including test results from the parents if the parents desire to provide this information.
IN RE QUESTION NO. 4c:
The apparent purpose of the mandatory annual testing requirement of SDCL 13-27-3 is to assist the board in deciding whether the child is being provided with 'competent alternative instruction . . . in the basic skills of language arts and mathematics . . . in the English language . . .' Should the school board determine that the child is not being so instructed based upon testing data or recommendations from the State Superintendent, SDCL 13-27-7 allows the school board to immediately revoke the certificate of excuse. In order to comply with the due process provisions of the United States and South Dakota Constitutions, it would be necessary for the school board to base its revocation of a certificate upon substantial evidence. Clearly, test results should be part of the evidence the school board uses in deciding whether to grant subsequent excuses from school attendance or to revoke existing certificates of excuse.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
