February 14, 1979

Mr. Pete W. Fallesen, Assistant State Director 
Department of Education and Cultural Affairs 
Division of Vocational-Technical Education 
Richard F. Kneip Building 

Pierre, South Dakota 57501

Official Opinion No. 79-3

Teacher Certification in Post-Secondary Vocational Educational Programs

Dear Mr. Fallesen:

You have requested an opinion based upon the following factual situation:

FACTS: 

Subsequent to reorganization of state government July 1, 1973, the Division of Vocational Education was created and is responsible for administering the provisions of SDCL 13-39.  The authority to certify teachers is vested in the state superintendent of the Division of Elementary and Secondary Education under SDCL 13-42. Local school districts operate and offer post- secondary vocational education programs, as well as secondary vocational programs. Students eligible to attend post-secondary vocational schools are sixteen years of age or older and have either completed or left high school. The Division of Vocational Education currently maintains the position that all post-secondary instructors must hold a teacher's certificate issued from Elementary and Secondary Education based on SDCL 13‑42‑1.

Based upon the above facts, you asked the following questions:

QUESTIONS: 

1.  Must an instructor who teaches vocational courses in post-secondary vocational education programs hold a teaching certificate issued by the Division of Elementary and Secondary Education? 

2.  If your answer is no to the above question, does any other agency and/or official have the legal authority to certify post-secondary vocational teachers?  If so, which agency and/or official?

SDCL 13-42-1 provides: 

No person shall be allowed to teach or administer in any of the public schools of this state nor draw wages as a teacher, principal, or superintendent who does not have a valid certificate issued by the superintendent of elementary and secondary education authorizing said person to teach or administer in the school or field for which he was employed.

SDCL 13-42-3, in describing the certification process, states that the teacher's certificate issued by the superintendent of Elementary and Secondary Education would authorize the holder thereof to accept a teaching or administrative position “in any elementary or secondary school in the field specified by said certificate.”  This provision, in my view, describes and limits to some extent the general language found in SDCL 13-42-1.  Also, I believe it is obvious that SDCL 13-42-1 has never been interpreted to be a requirement insofar as post-secondary teachers are concerned.

Thus, the answer to your first question is no.  I find nothing in the statute law of South Dakota or in the rules of the Division of Vocational Education, which requires a post-secondary vocational education teacher to hold a teaching certificate issued by the Division of Elementary and Secondary Education.

In regard to question No. 2, I would refer you to SDCL 13-39-37 which provides that the state Board of Vocational Education has the authority to promulgate rules governing the operation and maintenance of post-secondary vocational education schools and to promulgate such rules with respect to curriculum and standards of instruction and scholarship.  This statutory authority in my view is sufficient to authorize the state Board of Vocational Education to develop a certification process for post-secondary vocational teachers.

I realize that this opinion is somewhat contrary to the past practices of having the superintendent of Elementary and Secondary Education issue teaching certificates as a prerequisite to an instructor teaching in vocational post- secondary programs.  If this practice is one with which the state Board of Vocational Education agrees, they could simply amend their rules to provide that such post-secondary teachers would have a requirement similar to that imposed on secondary teachers by ARSD 24:10:06:01.  That administrative rule presently requires all teachers of vocational education classes at the secondary level to have a valid certificate for high school teachers issued by the Division of Elementary and Secondary Education.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

MVM:DOC:mam