We are a South Dakota public school district. The two Hutterite Colonies inside our boundaries want us to set up a public school on each colony. The colonies would furnish the building, maintain it, pay operating costs, and possibly contribute to the teacher's salary. We would employ and supervise the teacher. Is this legal under the South Dakota Constitution and statutes?
Plain-English summary
The Doland Independent School District had two Hutterite Colonies within its boundaries. The Hutterites, an Anabaptist communal Christian group with German-language Reformation roots, lived collectively on the colony lands and maintained their own social and religious community life. Their school-age children needed public education.
The district had options. It could continue busing the children into the town school, which the colony leaders disliked because the long bus ride mixed colony children into a larger and culturally distant student body for the school day. Or it could try to set up an on-colony public school, where the children could be taught by a district teacher in a district-controlled program but in a familiar physical and social setting.
The colony leaders had proposed a deal: the colony would furnish a suitable building, maintain the building, pay all operating costs, and possibly contribute to the teacher's salary. The school district would employ the teacher, control the curriculum, and treat the colony school exactly like any other district school for accreditation purposes. The teacher would be required to meet the same qualifications as any other district teacher.
The school board asked the AG two questions: (1) was the district authorized to set up the school under such conditions, and (2) would the contract between the district and the Hutterites be valid?
The AG worked through the South Dakota constitutional and statutory framework and concluded that the arrangement was legal, but only within tight constraints.
The constitutional and statutory backdrop. Article VIII, Section 1 of the South Dakota Constitution made it the legislature's duty to maintain a public school system. Article VIII, Section 16 expressly and emphatically prohibited any aid by the state for any sectarian purpose, and prohibited any sectarian instruction in a public school. SDC 1960 Supp. 15.3103 reinforced the prohibition: "No sectarian doctrine may be taught or inculcated in any of the public schools of the State."
These provisions had been read strictly by the South Dakota Supreme Court. In Synod of Dakota v. State (1891), the court had said: "It matters not how much consideration has been given by services rendered, the language is emphatic and unqualified that no money shall be given or appropriated for the benefit of or to aid any sectarian school, society, or institution." In State ex rel. Finger v. Weedman (1929), the court had held that even reading the King James Bible in a public school was an unconstitutional infringement of the religious liberty of Catholic children compelled to be present.
The U.S. Supreme Court had reinforced this position in Engel v. Vitale (1962) and Abington Township v. Schempp (1963), striking down state-sponsored prayer and Bible reading in public schools as Establishment Clause violations.
And an earlier AG opinion to Mr. J. T. Hines (October 11, 1945) had interpreted what was now SDC 15.3202 as prohibiting the use of any public school building for any religious purpose whatsoever during school session. The AG quoted: "The statute clearly contemplates that the religious instruction shall be given outside the school building; that there may be no interference with the school and that the school district shall incur no expense therefor." The 1945 reading remained good law in 1968 despite later amendments to 15.3202.
Applying the framework. Against this backdrop, the AG analyzed the proposed Doland arrangement. The school had to be a true public school: open to all children of school age in the area, not just colony children; under exclusive school district control as to curriculum, teacher selection, and building use during school hours; with absolutely no religious instruction or sectarian content offered during the regularly scheduled school periods.
The AG noted a useful distinction: the prohibition on sectarian instruction did not prevent the school from teaching about religion as an academic subject. Just as a public school could teach about communism and capitalism from an academic perspective, it could teach about Christianity, Judaism, Hutterite history, or any other religion as a subject of study. The line was between teaching religion (forbidden) and teaching about religion (permitted).
On the contract validity question, the AG found ample statutory authority for the deal. SDC 1960 Supp. 15.2301 gave school boards authority "for the purpose of organizing, maintaining, and conveniently locating schools for the education of all children of school age within the school district." That language supported on-colony locations as long as the school was open to all eligible children. SDC 1960 Supp. 15.2105 (as amended in 1963) gave the board power to "erect, purchase, lease, rent, sell, equip, and move schoolhouses." SDC 1960 Supp. 15.2233 expressly authorized school districts to "accept, own, manage, and dispose of any grant, gift, devise, or bequest of money, or real or personal property," and to contract on terms "as shall be to the best interests of all parties." Together, these provisions gave the board statutory authority to enter into the proposed cost-sharing contract.
The conflict-of-interest overlay. Chapter 30 of the 1963 Session Laws (amending SDC 1960 Supp. 10.0708) made it unlawful for a school district officer to be "interested, either by himself or agent, in any contract entered into" by the district. SDC 13.1308 made any public officer who voluntarily became interested in a sale, lease, or contract he was authorized to make a misdemeanant. SDC 1960 Supp. 15.9909 declared any school district contract in which a board member was directly or indirectly interested to be void.
If any Doland board member was a Hutterite colony member (or had a personal interest in colony lands or operations), the conflict-of-interest statutes would have voided the contract and made the participating board member criminally liable. The AG flagged this analysis without applying it to specific facts (the inquiry did not say whether any board member had a colony connection), but the board needed to vet itself before signing.
Bottom line. A public school on a Hutterite Colony was permissible if the school was strictly non-sectarian, open to all children, under exclusive district control during school hours, and the contract complied with the conflict-of-interest rules. The Doland district was authorized to establish such a school and to contract with the colonies for the facility and operating costs.
Currency note
This opinion was issued in 1968. 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. The federal Establishment Clause doctrine has developed substantially since 1968, including the Lemon v. Kurtzman test, more recent cases on religious accommodation in schools, and revised understandings of cooperation between public schools and religious communities. South Dakota's constitutional and statutory framework on no-aid-to-sectarian-purposes remains in place but has been refined by later decisions. School districts considering on-colony or other religiously-situated public schools today must consult current federal and state case law on the Establishment Clause and the no-aid clause, as well as updated South Dakota school statutes.
What the opinion meant at the time
For the Doland board and other South Dakota districts with Hutterite Colonies inside their boundaries, the opinion opened the door to on-colony public schools as long as they were genuinely public and genuinely non-sectarian. The arrangement could save the district money (the colony was offering free facilities) and could save the colony children long bus rides, but it required real discipline on the religious content side.
For Hutterite Colony leaders, the opinion meant they could host a public school but not control it. They could not require that only colony children attend, they could not direct that prayers be said or that German-language religious instruction be included during school hours, and they could not select the teacher. They could provide the building and pay for it, but they had to accept district control of everything that happened inside it during the school day.
For colony children, the opinion meant a closer school but with a curriculum that excluded the religious instruction that was a central feature of colony life. Religious instruction would have to happen outside the school day, on the colony's own terms.
For non-colony children in the area, the opinion confirmed their right to attend the colony school if they chose. The school had to be open to all children of school age in the area, which created a possibility (probably small, given geography) that non-Hutterite families could send their children to the colony school.
For school boards generally facing requests from religious communities to host public schools, the opinion provided a workable rubric: (1) school district employs and controls the teacher; (2) district sets the curriculum with no sectarian content; (3) school open to all eligible children; (4) school building under district control during school hours; (5) no funds flow from the district to the religious community (gifts and donations could flow the other way); (6) no board member can have a personal interest in the religious community. If the box was checked on all six, the arrangement was likely legal.
Common questions
Q: Could the teacher be a Hutterite?
A: The opinion did not address teacher selection by religion. The constitutional and statutory framework forbade sectarian instruction during school hours, but did not address the teacher's personal religion. A Hutterite teacher who met the district's qualifications and agreed to teach a non-sectarian curriculum would have been eligible, just like any other teacher.
Q: Could colony parents help shape the curriculum?
A: Only to the extent any parents could shape any public school's curriculum: by participating in normal community input processes that the district might offer. The colonies could not have contractual control over curriculum, because that would have been religious community control over a public school.
Q: What if the colony's contribution to the teacher's salary effectively let the colony dictate teacher hiring?
A: That would have been a problem. If the financial relationship gave the colony de facto control over the teacher, the school would no longer be under exclusive district control, and the constitutional bar on sectarian control would be triggered. The cost-sharing had to be structured to leave hiring and supervision entirely with the district.
Q: Could the building be used for religious purposes outside school hours?
A: The AG's reading of SDC 15.3202 (via the 1945 Hines opinion) prohibited the use of "any public school building for any religious purpose whatsoever during school session." Outside school hours, ordinary rental and use rules would have applied, with no constitutional bar against religious community use that did not interfere with the school. The colonies provided the building, so they presumably controlled non-school-hours use.
Q: What if the colony also wanted English-as-a-second-language instruction for children who spoke German at home?
A: ESL instruction is non-sectarian and could have been part of the district's curriculum if pedagogically appropriate. It would have been a normal curriculum decision by the district, not a sectarian accommodation.
Q: Did the opinion address busing of non-colony children to the colony school?
A: No. If the colony school was open to all eligible children, the district's normal transportation rules would have applied to non-colony children who chose to attend it. Practically, geography may have made this a non-issue.
Q: What conflict-of-interest concern would arise if a board member was related to a Hutterite by marriage?
A: The conflict-of-interest statutes addressed "direct or indirect" interest. A board member married into a colony might have an indirect interest depending on the financial relationship. The board had to apply the conflict statutes to its specific composition before signing the contract.
Background and statutory framework
South Dakota's Hutterite population in 1968 was significant and growing. The colonies, which had emigrated to the Dakotas in the 1870s and grown through high birth rates and selective splits, lived in collective communities with their own German-dialect language, religious practices, and economic arrangements. Children were typically educated in colony schools that combined secular instruction with extensive religious teaching.
The state's interest in providing a public education to all children of school age created a tension with the colonies' preference for in-community education. Various accommodations had been worked out over the decades, ranging from sending colony children to nearby town schools (with the long bus rides and cultural friction that entailed) to operating colony schools that received limited state support.
The Doland inquiry was an attempt to formalize an arrangement that combined the practical advantages of an on-colony location with the legal requirements of a constitutionally compliant public school. The AG's analysis was a careful walk through the relevant provisions:
- The Sections 1 and 16 of Article VIII of the South Dakota Constitution defined the basic duty and limitations.
- SDC 15.3103 and 15.3202 implemented the no-sectarian-instruction rule.
- SDC 15.2301, 15.2105, and 15.2233 gave the school board sufficient authority to organize, locate, build/lease, and accept gifts of facilities for schools.
- The South Dakota Supreme Court's Synod of Dakota and Weedman decisions, along with the U.S. Supreme Court's Engel and Schempp decisions, established the strict-separation reading of the no-aid and no-sectarian-instruction rules.
- The conflict-of-interest statutes (SDC 10.0708, SDC 13.1308, SDC 15.9909) imposed a separate constraint on the contract's validity.
The AG's bottom-line answer (yes, with careful structure) was a workable resolution that respected both the colonies' interest in proximity and the public school system's foundational principles.
Citations and references
Constitutional provisions:
- S.D. Const. art. VIII, § 1 (legislative duty to maintain public school system)
- S.D. Const. art. VIII, § 16 (no aid to sectarian schools/societies/institutions; no sectarian instruction in public schools)
Statutes:
- SDC 1960 Supp. 15.3103 (no sectarian doctrine in public schools)
- SDC 1960 Supp. 15.3202 (use of school building for religious purpose during school session)
- SDC 1960 Supp. 15.2301 (school board duty to organize, maintain, and locate schools)
- SDC 1960 Supp. 15.2105 (as amended by Section 1, Chapter 74, 1963 Session Laws) (board power to erect, lease, equip schoolhouses)
- SDC 1960 Supp. 15.2233 (school district authority to accept and manage gifts and bequests; contracting authority)
- SDC 1960 Supp. 10.0708 (as amended by Chapter 30, 1963 Session Laws) (school district officer conflict of interest)
- SDC 13.1308 (public officer interested in own contract; misdemeanor)
- SDC 1960 Supp. 15.9909 (school district contracts with interested board members are void)
Cases:
- Synod of Dakota v. State, 2 S.D. 366, 50 N.W. 632 (1891) (no aid to sectarian institutions)
- State ex rel. Finger v. Weedman, 55 S.D. 343, 226 N.W. 348 (1929) (King James Bible reading in public school unconstitutional)
- Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962) (state-sponsored school prayer unconstitutional under Establishment Clause)
- School District of Abington Township v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963) (school Bible reading unconstitutional under Establishment Clause)
Prior AG opinions:
- AG opinion to Mr. M. F. Coddington, March 10, 1966 (constitutional analysis of South Dakota public schools and sectarian aid)
- AG opinion to Mr. J. T. Hines, October 11, 1945 (SDC 15.3202 prohibits use of any public school building for any religious purpose during school session)
Source
Original opinion text
Education. Establishment of public school system in Hutterite Colonies, apportionment of operating costs and teacher's salary. Area furnished and maintained by Hutterites. Validity of contract.
You have requested an official opinion based upon the following factual situation:
"The Doland School District has discussed the possibility of setting up a public school system in two Hutterite Colonies within their school district. The contract between the district and the Colonies would provide, generally, that the Colonies furnish the suitable areas, maintain the area, and undertake all of the costs of the operation of the proposed school and would possibly pay a portion of the teacher's salary. The school district, on the other hand, would employ the teacher, which teacher would be required to comply with the curriculum of the Doland School System. The teacher, of course, would have to have the same qualifications of any other teacher for the district, and the teacher would be subject to the entire control of the school district.
"It is felt by the school board that it may be more economical to have this arrangement than to bus these students into the city school system."
You have asked two specific questions:
"1. Is the Doland School District authorized to set up a school under such conditions?
"2. Would a contract between the school district and the Hutterites for sharing the operating costs of the school and teacher be valid?"
On March 10, 1966, the Attorney General in an opinion to Mr. M. F. Coddington discussed areas which would materially affect the relationship which could possibly exist between the Doland School District and the Hutterite Colonies. This opinion cites Sec. 1, Art. VIII of the South Dakota Constitution which establishes the duty of the legislature to maintain a public school system. The opinion then sets forth Sec. 16 of Art. VIII which expressly and emphatically prohibits aid by the state for any sectarian purpose and also prohibits any sectarian instruction in a public school.
The leading case in South Dakota interpreting these constitutional provisions is the case of Synod of Dakota v. State, 2 SD 366, 50 NW 632 (1891). The Court states in its opinion:
"It matters not how much consideration has been given by services rendered, the language is emphatic and unqualified that no money shall be given or appropriated for the benefit of or to aid any sectarian school, society, or institution."
SDC 1960 supp. 15.3103 reads as follows:
"No sectarian doctrine may be taught or inculcated in any of the public schools of the State."
Therefore, when considering the above cited Constitutional provisions and statutes, it would appear that the proposed contract would be void and unconstitutional if the school or if any religious instruction whatsoever was offered during the regularly scheduled school periods.
In 1929 the South Dakota Supreme Court in the case of State ex rel Finger v. Weedman et al, 55 SD 343, 266 NW 350, held that the reading of the King James version of the Bible in a public school amounted to an unconstitutional infringement of the religious liberties of Catholic children who were being forced to attend the readings. The Court stated that "the state as an educator must keep out of this field, and especially is this true in the common schools, where the child is immature, without fixed religious convictions." The Supreme Court of the United States has affirmed this position in the leading cases of Engel v. Vitale, 370 US 421, 8 L ed 2d 601, 82 S ct 1261, 86 ALR 2d 1285 (1963), and Arlington School District v. Schempp, 374 US 302, 10 L ed 2d 844, 83 S Ct 1560 (1963). Also on October 11, 1945, the Attorney General in an opinion addressed to Mr. J. T. Hines stated that an interpretation of SDC 15.3202 would prohibit the use of any public school building for any religious purpose whatsoever during school session.
"The statute clearly contemplates that the religious instruction shall be given outside the school building; that there may be no interference with the school and that the school district shall incur no expense therefor."
Although the statute has been amended, SDC 1960 Supp. 15.3202, the amendment in no way affects the section of the statute upon which the opinion was based. It should be noted that this opinion refers only to "religious instruction" and in no way denies the schools the right to teach classes in religion just as they teach classes in history, math or political science. In other words, the distinctions between different religious beliefs can be studied from an academic point of view in the same manner as the distinctions between communism and capitalism are studied.
Therefore, it would appear to be well settled that the school, if established, must, in fact, be a public school open to all children of school age. There must be absolutely no possibility of any control being exerted by the Hutterite Colonies over the use of the building, the curriculum and the teacher.
SDC 1960 Supp. 15.2301 states in part as follows:
"The school board... has been created... for the purpose of organizing, maintaining, and conveniently locating schools for the education of all children of school age within the school district."
This statute indicates broad powers existing in the board for the establishment of schools as long as all children are granted admission. Section 1, Chapter 74 of the 1963 Session Laws amending SDC 1960 Supp. 15.2105 reads in part as follows:
"Any school board shall have power to erect, purchase, lease, rent, sell, equip, and move schoolhouses... as the board shall deem necessary subject to the limitations as provided by law." SDC 1960 Supp. 15.2233 reads as follows:
"Every school district in this state is hereby empowered to accept, own, manage, and dispose of any grant, gift, devise, or bequest of money, or real or personal property; and the school board of such school district shall have the power to enter into such agreement for the receipt thereof upon such terms as shall be to the best interests of all parties and to make such rules and regulations as it may deem best for the ownership, management, and control of such property."
This statute appears to give the school district broad powers to contract with others on terms which would be to the "best interests of all parties;" certainly the proposed contract would serve the interests of the school district as well as the Hutterites.
However, concerning the contract itself, Chapter 30 of the 1963 Session Laws amending SDC 1960 Supp. 10.0708 reads in part as follows:
"It shall be unlawful for an officer of a... school district... to be interested, either by himself or agent, in any contract entered into by said... school district. Such contract shall be null and void from the beginning. Provided, however, that the foregoing provisions shall not be applicable when the contract is made pursuant to any one of the following subdivisions hereof, without fraud or deceit; but, such contract shall be voidable if the provisions of the applicable subdivision were not fully satisfied or contract present with at the time such contract was entered into: (3) Any contract with any... association... for which competitive bidding is not required and the consideration is reasonable and just, unless a majority of the governing body members... or any one of them is an officer or manager of such... association, then such contract shall be null and void."
SDC 13.1308 reads as follows:
"Every public officer, being authorized to sell or lease any property, or make any contract in his official capacity, who voluntarily becomes interested individually in such sale, lease, or contract, directly or indirectly, is guilty of a misdemeanor."
SDC 1960 Supp. 15.9909 reads as follows:
"Any contract of a school district in which a member of the school board or board of education shall be directly or indirectly interested shall be void, and any member of such board having an interest in such contract or the result thereof, who participates on behalf of his district in the making of such contract, shall be guilty of a misdemeanor."
These statutes consider the possibility of a conflict of interest issue and it is my opinion that the statutes must be applied to the school board at the time of the making of the contract.
In concluding, it is my opinion that a contract between the Doland Independent School District and the Hutterite Colonies would be valid if executed subject to the constitutional and statutory limitations and requirements discussed in this opinion.
It is also my opinion that the Doland Independent School District is authorized to establish a school under such conditions.