In 2015, the SD State Board of Education was proposing new Science Standards that drew heavily from the multi-state Next Generation Science Standards (NGSS). SD law had just been amended (SDCL 13-3-48.1) to ban adoption of multistate-consortium standards before July 1, 2016. Would adopting these NGSS-influenced standards violate that ban?
Plain-English summary
In 2014, the SD Legislature passed SDCL 13-3-48.1 in response to public concern about Common Core and other multistate consortium curriculum efforts. The statute said that "Prior to July 1, 2016, the Board of Education may not, pursuant to § 13-3-48, adopt any uniform content standards drafted by a multistate consortium which are intended for adoption in two or more states."
In 2015, the SD State Board of Education was working on new Science Standards. The proposed Science Standards drew heavily from the Next Generation Science Standards (NGSS), which were developed by a consortium of 26 states (including SD as a "lead state partner"), the National Research Council, the National Science Teachers Association, the American Association for the Advancement of Science, and Achieve.
Senator Phil Jensen and 35 other legislators asked the AG whether adopting the proposed Science Standards before July 1, 2016 would violate SDCL 13-3-48.1.
The AG's answer was no, as a matter of law on the facts presented. The opinion drew a careful distinction between two things:
- Standards drafted by a multistate consortium (prohibited).
- Standards drafted by SD's own DOE workgroup that incorporate substantial content from a multistate consortium's product (not prohibited under SDCL 13-3-48.1 as written).
The proposed Science Standards were the work of SD's own DOE-organized workgroup. The workgroup borrowed heavily from NGSS in content and formatting, but the actual drafting was a SD product. The statute, as written, prohibited only standards drafted by the multistate consortium itself.
The AG was clear that the question was a mixed question of law and fact, and the opinion was limited to the facts as presented. The AG accepted as true the facts presented in the opinion request, the letter from Secretary Schopp, and the publicly available DOE information about the development of the Proposed Science Standards. The AG explicitly said the opinion did not extend beyond those facts; if the actual drafting work had been done by the consortium rather than the SD workgroup, the analysis could change.
The AG also noted that any further restriction on adopting NGSS-derived (as opposed to NGSS-drafted) content would have to come from the Legislature. The 2014 statute's prohibition was narrow, and the AG could not rewrite it to capture NGSS-influenced standards. If the Legislature wanted to bar all NGSS-derived content, it could amend SDCL 13-3-48.1 to do so.
Currency note
This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SDCL 13-3-48.1 had a sunset of July 1, 2016 built into its language, so the operative prohibition has long since expired by 2026 unless the Legislature reenacted it. SD's science standards have likely been revised at least once since 2015. Check the current text of SDCL 13-3-48 and any successor restrictions, and the current State Board of Education's adopted standards, before relying on any specific rule.
What the opinion meant at the time
For the SD State Board of Education in 2015, the opinion cleared a legal cloud over the proposed standards. The Board could proceed with the formal adoption process, knowing that doing so before July 1, 2016 would not, on the facts presented, violate SDCL 13-3-48.1. The Board still had to run its own evaluation of the substantive merits of the standards, but the multi-state-consortium prohibition was not a barrier.
For SD DOE curriculum staff, the opinion validated the workgroup-based drafting approach. The Department had organized its own workgroup, held public meetings, and produced its own document. The fact that the workgroup drew on NGSS for content and structure was permissible. The DOE could continue that pattern for other subject areas.
For SD legislators (including Senator Jensen and the 35 colleagues who joined the opinion request), the opinion was effectively a "if you want a broader prohibition, you need to amend the statute" answer. The AG was not going to read SDCL 13-3-48.1 broadly to capture NGSS-influenced standards. The Legislature could revisit the statute in the 2015 session or later sessions if it disagreed with the AG's reading.
For local school districts and science teachers, the opinion meant the proposed standards were on track for adoption. Districts could begin curriculum planning around the new standards rather than waiting for legal resolution.
For parents concerned about Common Core and NGSS, the opinion was a mixed result. The narrow statutory prohibition did not block the proposed standards, so concerns about NGSS-influenced content were not going to be resolved through SDCL 13-3-48.1. Parents who wanted to push back further had to engage through the Board of Education's public-comment process or through the Legislature.
Common questions
Q: What is SDCL 13-3-48.1?
A: A 2014 SD statute that prohibited the State Board of Education from adopting, before July 1, 2016, content standards drafted by a multistate consortium intended for adoption in two or more states. The statute had a built-in sunset of July 1, 2016.
Q: What are the Next Generation Science Standards?
A: A set of K-12 science content standards developed by a consortium of 26 states (including SD), in partnership with the National Research Council, the National Science Teachers Association, the American Association for the Advancement of Science, and Achieve. NGSS is a national curriculum framework that individual states could adopt or adapt.
Q: Did SD "adopt" NGSS in 2015?
A: According to the opinion, no. SD's State Board of Education was proposing new Science Standards drafted by SD's own DOE workgroup, which incorporated significant items and formatting from NGSS. The opinion treats that as a SD-drafted product, not an NGSS adoption.
Q: Why did the AG say this was a "mixed question of law and fact"?
A: Because the legal question (does the statute prohibit this?) depended on the factual question (who actually drafted the proposed standards?). The AG could not answer the legal question without accepting some version of the facts. The opinion accepts the facts presented by the requesting parties and the DOE, but expressly notes that a different factual record could change the answer.
Q: Could the Legislature have blocked NGSS-derived standards?
A: Yes, by amending SDCL 13-3-48.1 to prohibit not just NGSS-drafted standards but also NGSS-derived standards. The AG specifically said: "Further limitations on the adoption of Science Standards would need to be addressed by our Legislature."
Q: What did "lead state partner" mean for SD's involvement with NGSS?
A: SD's Department of Education participated with 26 other states as a lead state partner in NGSS development. The lead state partners committed to "give serious consideration to adopting the resulting [NGSS] as presented." That language did not bind SD to adopt NGSS, only to seriously consider it.
Q: Did the AG opine on whether the proposed standards were good policy?
A: No. The opinion was strictly limited to the legal question of whether adoption would violate SDCL 13-3-48.1. The AG took no position on the substantive merits of the standards.
Q: What if a future workgroup adopts NGSS-drafted standards verbatim?
A: The opinion's reasoning would not protect that. The opinion turns on the workgroup having drafted SD's own product. If a future Board adopted the actual NGSS document, the prohibition (while in effect) would apply.
Background and statutory framework
SD law gives the State Board of Education broad authority to adopt content standards for the public schools under SDCL 13-3-48. The Board's standards-adoption process typically involves a workgroup of educators and content experts, public comment, board review, and formal adoption.
The Common Core State Standards adopted by SD in 2010 were a multistate-consortium product. They became politically controversial in the early 2010s, with critics arguing that adopting standards drafted by an outside consortium ceded SD's curriculum-setting authority to a non-state body. The 2014 SD Legislature responded with SDCL 13-3-48.1, which imposed a temporary moratorium (through July 1, 2016) on adopting "any uniform content standards drafted by a multistate consortium which are intended for adoption in two or more states."
The statute's text is critical. It prohibits standards drafted by a multistate consortium, intended for adoption in two or more states. Both elements have to be present. The AG read the statute strictly because it was a statutory restriction on the Board of Education's otherwise broad authority, and statutory restrictions on agency authority are typically read narrowly.
The proposed Science Standards at issue in 2015 had a complicated genealogy. The Next Generation Science Standards were the output of a multistate consortium effort intended for adoption in two or more states. That part of SDCL 13-3-48.1 would have been satisfied if SD had been adopting NGSS itself. But SD's proposed Science Standards were not NGSS; they were a SD DOE workgroup product that incorporated NGSS items and formatting.
The factual record showed:
- SD DOE convened the workgroup.
- The workgroup held public meetings (per the DOE website's posted schedule).
- The workgroup produced a draft.
- The draft borrowed substantially from NGSS in content and formatting.
- The State Board adopted a Standards Revision and Adoption Timeline in November 2014.
Given those facts, the AG concluded the proposed Science Standards were a SD-drafted product. The fact that the workgroup borrowed from NGSS did not convert the SD product into an NGSS product. The narrow statutory prohibition did not apply.
The AG was careful about the limits of the opinion. AG opinions in SD are limited to questions of law on actual factual situations, not hypothetical ones. The AG explicitly noted that the question was a mixed question of law and fact and that further factual inquiry was beyond the opinion's scope. The AG accepted the facts as presented and answered the legal question on that basis.
The AG also flagged the policy-vs.-law distinction. If the Legislature wanted to bar NGSS-derived standards (not just NGSS-drafted standards), it could amend SDCL 13-3-48.1 to do so. The AG could not rewrite the statute to capture content beyond its text.
The opinion's holding fits a typical AG-opinion pattern in SD: read statutes narrowly when they restrict agency authority, accept facts as presented when the legal question depends on them, and defer back to the Legislature for any broader policy change.
Citations and references
Statutes:
- SDCL 13-3-48 (Board of Education content-standards authority)
- SDCL 13-3-48.1 (2014 prohibition on adopting multistate-consortium standards before July 1, 2016)
Cases:
- None cited.
Background:
- South Dakota Standards Revision and Adoption Timeline, adopted by the BOE on November 17, 2014
- Next Generation Science Standards (www.nextgenscience.org)
- SD DOE Content Standards information at doe.sd.gov/contentstandards/
Source
Original opinion text
OFFICIAL OPINION NO. 15-01 SDCL 13-3-48.1 Limitations on Science Standards adopted by State Bd of Ed
March 17, 2015
Phil Jensen
State Senator
South Dakota Legislature
10215 Pioneer Ave.
Rapid City, S.D. 57702
RE: SDCL 13-3-48.1 Limitations on Science Standards adopted by the State Board of Education
Dear Senator Jensen;
The Attorney General has received a request for an official opinion from you which is supported by 35 state legislators.
Question:
Do the State Board of Education's currently proposed Science Standards, which incorporate a significant number of items and formatting from the "Next Generation Science Standards," violate SDCL 13-3-48.1 if adopted?(fn1)
Answer:
No. I cannot conclude as a matter of law that the State Board of Education's adoption of the Proposed Science Standards under the facts set forth herein would violate SDCL 13-3-48.1.
The Next Generation Science Standards were developed by a group of states in conjunction with the National Research Council, which is associated with the National Academy of Sciences; the National Science Teachers Association; the American Association for the Advancement of Science, a non-profit organization dedicated to advancing science around the world; and Achieve, a non-profit education reform organization.(fn6) South Dakota, through the Department of Education, participated with 26 other states as a "lead state partner" in development of the Next Generation Science Standards.(fn7) The "lead state partners" developing these Standards committed to "give serious consideration to adopting the resulting [Next Generation Science Standards] as presented."(fn8)
In re Question:
Opinions from the Office of the Attorney General are confined to questions of law relating to actual, not hypothetical, factual situations. Your opinion request presents a mixed question of law and fact.
In order to opine on your legal question, I must accept as true the facts presented in your opinion request, the letter from Secretary Schopp attached to your opinion request, and the publicly available information on the DOE's website regarding the development of the Proposed Science Standards. Further factual inquiry is beyond the scope of a legal opinion issued by the Office of the Attorney General.
SDCL 13-3-48.1 was adopted by the South Dakota Legislature in 2014. This statute states:
Prior to July 1, 2016, the Board of Education may not, pursuant to § 13-3-48, adopt any uniform content standards drafted by a multistate consortium which are intended for adoption in two or more states. However, this section does not apply to content standards whose adoption by the Board of Education was completed and finalized prior to July 1, 2014.
Based on the facts presented and accepted as true, the proposed Science Standards were drafted by a workgroup convened by the South Dakota Department of Education, not by the multistate consortium that developed the Next Generation Science Standards. The proposed Science Standards incorporate substantial content and formatting from the Next Generation Science Standards, but the drafting was done by SD's own workgroup. Under those facts, the proposed Science Standards are not "drafted by a multistate consortium" within the meaning of SDCL 13-3-48.1.
Further limitations on the adoption of Science Standards would need to be addressed by our Legislature.
Sincerely,
Marty J. Jackley
Attorney General
MJJ/lde
FOOTNOTES
1 Your question has been revised to reflect the facts disclosed in your opinion request.
2 http://doe.sd.gov/contentstandards/
3 http://doe.sd.gov/contentstandards/; link under Science Standards section to "Workgroup Overview."
4 http://doe.sd.gov/contentstandards/meetingschedule.aspx
5 South Dakota Standards Revision and Adoption Timeline, adopted by the BOE on November 17, 2014.
6 Next Generation Science Standards website at www.nextgenscience.org.
7 Next Generation Science Standards website at www.nextgenscience.org.