September 6, 1979

Mr. Thomas C. Todd, State Superintendent 
Elementary and Secondary Education 
Department of Education and Cultural Affairs 
Kneip Building 

Pierre, South Dakota 57501

Official Opinion No. 79-32

Accreditation of non-public schools, certification of teachers in non-public schools, and student attendance at non-public schools in the state of South Dakota

Dear Mr. Todd:

You have requested an official opinion from this office based on the following factual situation.

FACTS: 

SDCL 13-1-12, 13-3-47, 13-4-1, 13-4-2, 13-4-4, 13-4-5,  13-27 and 13-42-2 are relevant to the accreditation, approval, supervision, certification of teachers, and student attendance of non-public schools operating in South Dakota.  There is at the present time a certain degree of uncertainty as to the application of these statutes to situations that arise concerning non-public schools.

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

QUESTIONS: 

1.  Is it mandatory that a non-public school be accredited or approved in order for students who attend to be in compliance with the compulsory attendance statutes? 

2.  Is it possible for a person to teach in a non-public school who does not hold a valid teacher certificate issued by the division of elementary and secondary education? 

3.  If the answer to question No. 1 is yes, then who has the responsibility to enforce the provisions of SDCL 13-27 and what is the procedure? 

4.  If the answer to question No. 2 is no, what is the procedure to follow to bring an action against such a person? 

5.  Would the state board of education be authorized to adopt rules which would authorize a qualified certificate to a person that would only authorize such person to teach in a non-public school?

IN RE QUESTION NO. 1:

It is a very basic rule of statutory construction that statutes dealing with the same subject matter are to be interpreted together so that all such statutes can be given effect if possible.  This basic rule of statutory construction underlies the responses to all of your questions herein.

In my opinion the answer to your first question is yes.  SDCL 13-27-1 requires the attendance between the ages of seven and sixteen at some public or non-public elementary school.  SDCL 13-3-47 provides that the State Board of Education and the superintendent shall accredit both public and non-public elementary schools.  Since the law requires the attendance of students at elementary schools, public or private, and the law also requires that all elementary or secondary education institutions be accredited, whether they are public or non-public (SDCL 13-4-1, 13-3-47, it follows in my view that the law requires that students attend accredited or approved schools in order to be in compliance with the compulsory attendance statutes.

IN RE QUESTION NO. 2:

In my opinion the answer to your second question is yes.  Under SDCL 13-4- 2 no person would be permitted to teach in a non-public school in any of the courses prescribed to be taught in the public schools unless the person shall hold a certificate entitling him to teach the same courses in the public schools of this state.  The statute does not govern the certification of teachers in private schools teaching courses not required to be taught in the public schools of the state.

IN RE QUESTION NO. 3:

SDCL 13-27-12 indicates that the superintendent of elementary and secondary education or his authorized agent has general enforcement responsibilities over the provisions of chapter 13‑27, SDCL 13-27-16 indicates that school boards have certain responsibilities to notify parents and to cooperate in the enforcement of school attendance laws.  Likewise, SDCL 13-27-1 places a responsibility on parents or guardians in this regard.  It is obvious, however, that the obligation of parents here is different from the obligation of the enforcement authorities discussed above.

In regard to your question on procedure for enforcement, it is difficult to categorically state that only one procedure will work or is available. Pursuant to SDCL 13-27-12, it is clear that the superintendent of elementary and secondary education, or his authorized agents, have the same powers and privileges as are granted to truancy officers.  This grant of authority, together with the more specific statutes on truant officers in chapter 13- 27, indicates that the procedure would be for the truancy officer or the superintendent to file complaints with the circuit court pursuant to SDCL 13-27-20 through -23 inclusive, and SDCL 13-27-11.  This procedure would be a legal proceeding requiring the involvement of counsel from either the Attorney General's Office or the state's attorney of the county to proceed against the individuals involved. This procedure is a criminal offense pursuant to SDCL 13-27-11 and as such should be handled as routine criminal matters are handled in the county.

IN RE QUESTION NO. 4:

Procedures to enforce the requirements of chapter 13-4 are available against the institution (SDCL 13-4-5).  With respect to possible avenues of enforcing the requirements of chapter 13-4 against the individual teacher, it would appear that the proper remedy there would be to seek a court injunction to restrain the individual from continuing to act as a teacher contrary to state law requirements governing certification of teachers teaching state- required courses in non-public schools.  This again would involve court procedures of a civil nature and would thus necessitate services of counsel in bringing the court into the matter.

IN RE QUESTION NO. 5:

In my opinion the answer to your fifth question is no.  Nowhere in Title 13 do I find any authority for the State Board of Education to adopt a qualified teaching certificate for non-public school teachers.  Title 13 is clear in that the Legislature intended all children to be taught by persons certified by the State of South Dakota to teach basic subject matter.  The Board does not have authority to issue a qualified certificate just because an individual happens to teach in a private school.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

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